The LSC Consultation Questions

To help you get to grips with the specific questions posed by the LSC in its consultation paper, this section lists the questions they specifically set, together with some background information and key considerations on each. We have tried to avoid biasing the information in this section towards our own views (which you can read in the JSP Response section if you wish), and crave your indulgence if you feel we haven't achieved complete neutrality!

After reading this, you can:

• Read our initial, detailed response to the Consultation Paper take me there...
• Read the Consultation Paper in its entirety take me there...
• Respond to the Consultation paper tell me how...

The LSC Consultation is subtitled ‘quality, price and procedures’. The Commission is, however, somewhat hampered in its approach to experts' charges because it does not currently gather data that would enable it:

• to know its spend on experts, and
• to understand the difference there might be between the fees of experts working in the civil and criminal arenas.

Question 4.2
Do you view services under the CLS and CDS (legal aid) as public services like the NHS? (See para 5.2)

What can be the purpose of this question? As both NHS treatment and legal aid are paid for out of the public purse, they must surely both be public services. But are they equivalent? The NHS is, for example, free to all at the point of delivery. This has never been the case with legal aid. Brian Stone, a Senior Manager within the LSC, speaking at the Society of Expert Witnesses conference this Autumn, suggested that as legal aid was a public service, those who worked within its purview should expect to be paid less than in the commercial arena.

Question 4.3
Do you consider that accreditation will generally raise the quality of forensic services provided by experts? (See para 5.13)

• What does an expert do that makes him or her an expert witness?
• Is that witness-specific element of the work capable of being accredited?
• Does accreditation raise standards by preventing poor-quality experts from getting work?
• Can you conceive a system of accreditation that would have excluded Prof. Sir Roy Meadow or Prof. Southall?
• Is the underlying assumption in this question that the current quality of forensic services is not high enough? If so, does the fact that experts in legal aid cases tend to be paid at something like half the rate of their colleagues working on privately funded cases have any impact on quality? If so, how?
• The LSC makes the assertion in Para 2.2 that CRFP-accredited experts equate with ‘quality assured’ experts. Is this true? Does accreditation (in whatever form) prevent experts getting things wrong ‘on the day’?

Question 4.4
Do you agree that the bodies identified by the Commission for the quality assurance function are the most appropriate? Are there any other bodies that should be considered as quality assurance bodies? (See para 6.9)

For expert witnesses, the body identified by the LSC is the Council for the Registration of Forensic Practitioners (CRFP). When answering this question, be clear on whether or not you believe experts can (or should) be accredited as expert witnesses.

• In any system of accreditation, how much power should the accrediting body have over the individual?
• Should the accrediting body be able to prevent the person from undertaking particular classes of work?
• Is removal from a register sufficient if an expert is found wanting?
• If a professional qualifying body already exerts control over its membership by specifying a procedure for professional accreditation as an expert of sufficient seniority, skill and/or knowledge to be able to offer expert witness services, would the CRFP be adding or detracting from that control?

Question 4.5
What is your professional body and do you consider that it would be practicable for it to work with the CRFP to develop a post-qualification forensic work specialism as we propose? (See para 6.12)

• Is there any benefit to be derived from having your professional qualifying body set up a system of accreditation of experts as expert witnesses?
• If so, would such a scheme be better for having the CRFP involved?

Question 4.6
Do you agree with the Commission’s view that, even in the long term, compulsory accreditation is not practicable? (See para 6.14)

There are many areas of expertise that only seldom reach the courts. Setting accreditation barriers for such practitioners would most likely simply prevent them from ever getting involved in cases, thereby depriving the courts of a small, but valuable, source of assistance.

• But, does the current drive to grow the CRFP mean that its accreditation scheme would become mandatory in practice, if not in name?
• What impact does this have for the court's long history of freedom to assign whatever weight it sees fit to the expert evidence put before it by the parties?

Question 4.7
To what extent do you support the Commission’s quality assurance proposals and are they equally applicable to all types of proceedings? (See Part 2)

• Do you believe there is a general problem with the quality of expert evidence?
• Are problems confined to leading-edge science where today's received wisdom can quickly become yesterday's pet theory?
• Is scientific evidence particularly problematic, given the requirement that true scientific theories be capable of being proven false (the 'falsification' basis of science)?

• Is any problem with the quality of expert evidence restricted to legally aided cases?
• If so, why? Is it related to the relatively poor rates of pay experts can expect in the legally aided arena?
• Is the quality of instructions in legally aided cases lower than in other cases?

• Does the ‘beyond reasonable doubt’ test (i.e. 99% sure) in the criminal court mean expert evidence should be treated differently from that in the civil court, where ‘the balance of probabilities’ test (i.e. 51% will do) is used?
• Does the secrecy in the family court make any difference to the handling of expert evidence?

Question 4.8
Do you agree that experts’ fees for services under the CLS and CDS should be lower than in privately funded cases?

• What would be the justification for this distinction?
• Would it affect the number, or quality, of experts willing to work in the publicly funded arena?
• If so, how would the quality be affected?
• By reference to the NHS (in Question 4.2), what quid pro quo do doctors receive for agreeing to lower rates of pay for their NHS work compared with their private work?

Question 4.9
Do you agree that an expert should charge less in less serious crime cases? (See para 9.12)

• The LSC believes that the seriousness of the crime should be taken into account when determining how much to spend on an expert. They do this by analogy with the litigant who is funding his own action in the civil arena. Does this analogy hold water?
• Should the payment received by an expert be related to the work done?
• If so, is it likely that less serious crime cases would require less work from the expert?
• Does expert evidence work that way?
• If the instructing solicitor were able to instruct an expert to prepare an 'outline' report within an agreed budget, would that reduce costs whilst protecting the expert and the defendant?
• Does this carry any hint of conditional fees? If so, how?

Question 4.10
Do you agree that “proportionality” should affect experts’ fees in civil cases?(See para 9.15)

The question of “proportionality” of expert fees is destined to become a hot topic! Since CPR requires cases to be handled in a proportional way, the view is now being aired that expert fees should be likewise related to the quantum in a case.

• How can this be achieved?
• Is the evidence in low quantum cases likely to be less complex?
• If fixed fees were introduced for certain types of case, would that have an impact on an expert's ability to prepare an opinion that was CPR-compliant?

• Can “proportionality” of expert fees be achieved by any scheme that does not relate the amount of work the expert does to the payment received?
• If yes, how?
• If not, is there anything about the requirements of CPR that might be relaxed to allow cheaper reports to be prepared?
• Does the fact that well over 90% of civil cases never reach court, but are settled, have any importance in this context?

Question 4.11
What are your views on “proportionality” of costs in family cases? (See para 9.21)

• What is there about the nature of the cases dealt with by the family courts, or the way they operate or use expert evidence, that would make your response to this question differ from your answer to the previous question?

Question 4.12
Do you agree that, like lawyers, experts should keep a detailed record of the work they perform (and of the time taken), and what do you think are the benefits and drawbacks of doing this? (See para 9.33)

We have long recommended that experts maintain a proper record of their work so that they are in a position to provide contemporaneous evidence in support of their fees.

• Is there any type of expert witness work were the commercial realities make such a task unnecessary, very difficult or impossible?

Question 4.13
Do you appreciate the Commission’s difficulties in dealing with applications for prior authorities in cases that are not managed under individual case contracts? If so, do you agree that abolishing prior authorities and publishing guideline fees is a reasonable way of dealing with this issue? (See para 10.4)

The system of prior authorities – giving an expert and his instructing lawyer certainty of payment – has been an important factor for many experts continuing to accept legally aided cases.

• How important is it to you?
• Would fixed fee scales, with their ability to remove most arguments over what fees are appropriate, be a suitable alternative?
• If so, would civil remuneration rates falling to those currently seen in criminal cases make a difference to your view? (See our Factsheet 11 Expert Witness Allowances in Criminal Cases for detail of the current rates.)

At present, the LSC staff have great difficult making informed decisions on whether or not to allow prior authority in individual cases.

• Is there any way experts could help them to do this more effectively?
• Would panels of specialists who reviewed requests be feasible?
• Would serving on such a panel be a good way for experts to support the social aims of legal aid?

Question 4.14
Do you agree that, for (a) civil and (b) family proceedings, the guideline rates for experts should have (i) a lower minimum and (ii) a higher maximum? And if not, why not? (See Para 9.17 and Annexes F and G)

The LSC believes that the principle of “proportionality” of expert fees (to the quantum of a case) means that in civil cases the ‘proper’ level of fees for an expert would fall within a very wide band. (Note that the guideline rates referred to in this question are those for experts in criminal cases. They can be viewed in our Factsheet 11 Expert Witness Allowances in Criminal Cases.)

• Do you agree with this analysis?
• If so, in what way is the amount of work an expert has to do in a low-value case reduced with respect to a higher value case?
• Does the CPR requirements for expert reports play any role in this?

Question 4.15
Which view of an expert’s obligation to the court do you feel most accurately reflects the current position? If neither, please state your view of the obligation (See Annex H – Draft terms of appointment).

The LSC has received some, presumably strong, representations that experts in criminal cases do not always owe an overriding duty to the court. Hence the provision of two statements of the expert's overriding duty. We do not yet have Criminal Procedure Rules, although a panel has been set up to look at creating some. Until then, there is nothing in the criminal arena that states as clearly as in the CPR that the expert has, at all times, an overriding duty to the court.

• How comfortable are you with a statement of your duty that differentiates between the criminal and civil courts?
• If you don't have an overriding duty to the criminal court, to whom do you owe a greater duty?
• Would that duty cause you to deviate from the path you would follow if your overriding duty was at all times to the court?
• If so, when your overriding duty switched back to the court, how would you deal with any conflict thereby created?

Question 4.16
Do you agree that, in criminal proceedings, the prosecution and defence should work to the same guidelines for experts’ fees? (See para 9.9)

• Is there any basis upon which to differentiate between the work done by prosecution experts and defence experts?
• Could favourable terms of payment, or other commercial factors, make such a position viable?
• What if the prosecution offered block contracts to experts – say, a guarantee of 20 cases a year?

Question 4.17
Do you agree that, given the width of crime guideline rate bands in the regulations, it is appropriate to introduce guidance on fees within the bands and to divide the bands? (See para 9.11)

The existing guidance on expert fees in criminal cases, which provides for around 50% of the rates experts charge in civil cases, is split into very broad categories (see our Factsheet 11 Expert Witness Allowances in Criminal Cases for detail of the current rates). The LSC believes this makes it difficult for those working in the criminal arena to determine with any certainty where a particular expert will fit in.

• Would improved guidance and better banding, leading to greater certainty on fees, make any difference to you?
• Would this development simply create more arguments about the band to which an expert is allocated?

Question 4.18
Do you consider that additional specialisms need to be included in the crime guideline bands? If so, what are they, and what group do you consider they should be in? (See Annex E- Part 2)

• Have you found it difficult to persuade lawyers and the courts that you should be paid in line with one band rather than another?
• If so, this is a chance for you to have your own discipline included as a specific item. Would that be attractive, or do you enjoy the ability to negotiate your way into a higher paying band?

Question 4.19
Do you agree that the number and cost of experts’ reports in public law Children Act cases have increased significantly in recent years? Do you consider that the assessment work undertaken (or not) by local authorities and the approach of a local authority towards payment of experts’ fees has a significant impact? If so, please explain by reference to examples. (See para 9.20 and Annex G-Part 2)

The LSC has been (fairly) candid in its admission that much of its concern over escalating costs of experts is based on straw polls of case workers, since it does not actually gather statistics on what it spends on experts. So, if you have some statistics, they are going to be hard for the LSC to refute!

Question 4.20
Do you consider that, in public law Children Act cases, the court should pay for the expert services it approves/requires (in the same way that the court pays for professional and expert witnesses attending court to give evidence in criminal cases)? (See para 9.24)

The rates of pay in criminal cases are around half those currently achieved by experts in civil cases. See our Factsheet 11 Expert Witness Allowances in Criminal Cases for detail of the current rates.

• Would you expect that a move to court payment in the family court would drive down fees?
• If so, how would that affect your willingness to be instructed?
• Would the lack of payment squabbles mitigate any drop in fee rates?

Question 4.21
Should solicitors and experts be able to agree to disapply any of the proposed standard terms of instruction in cases under the CLS and CDS? (See Annex H)

The LSC proposes to force some LSC-specific terms into the contracts agreed between lawyers and experts.

• Have you ever seen this sort of approach adopted elsewhere?
• If so, does it work well?
• Would the right to opt out of any of the terms change your view on this particular proposal?
• If the terms become voluntary, do they provide any benefit? If so, to whom?

Question 4.22
Do you consider that more detailed guidance than that proposed about fees is necessary, and, if so, do you have any to suggest? (See Annex E - Part2, Annex F and Annex G - Part 1)

The LSC has tried to make its proposed guideline fees clear and unambiguous.

• Have they succeeded?
• If not, how could they be improved?

Question 4.23
What are your views on the categories of expert proposed in the fees guidance? Have you others to suggest and, if so, in which group should they appear?

The LSC has, based on problems experienced with the existing criminal banding scheme, attempted to improve clarity in its proposals for banded fee guidance in civil cases.

• Does your area of expertise fit into their scheme?

Question 4.24
To help experts with questions about Commission-funded legal services do you consider that the Commission’s website www.legalservices.gov.uk could usefully include a section for experts?

Nothing to say on this one.

What next?

You can now:

• Read our initial, detailed response to the Consultation Paper take me there...
• Read the Consultation Paper in its entirety take me there...
• Respond to the Consultation paper tell me how...