The Carter Review of Legal Aid Procurement: Final Submission

Executive Summary (Initial submission)

This is the submission of the UK Register of Expert Witnesses to Lord Carter’s Review of Legal Aid Procurement that began work on 5 July 2005. It draws together 264 contributions from expert witnesses currently listed in the Register.

The core problem for the Legal Aid system is how it can pay ‘proper’ fee rates to expert witnesses and thereby retain experienced expert witnesses willing to provide opinion evidence. Based on the analysis of the UK Register of Expert Witnesses, the answer seems to lie in a combination of early involvement of experts, staged instructions and pre-trial assessment of expert evidence.

The existing trend towards the earlier involvement of experts noted by the DCA in A Fairer Deal for Legal Aid must be reinforced. Expert opinion evidence, if used early enough, can stop weak cases from ‘getting off the ground’. Trying to save public funds by paying expert witnesses less is tantamount to locking the stable door after the horse has bolted. Stopping the weak cases from ever starting, through the better use of experts earlier in the case management process, will return much greater cost savings than tweaking the fees of expert witnesses.

An approach already employed by many experienced litigation lawyers in the civil arena is staged instruction of experts. Potentially large expert witness assignments are broken into smaller, more easily managed, stages, and each stage of reporting acts to inform the next.

The current court system requires that two ‘Rolls Royce’ reports are obtained, covering all aspects of the expert evidence, even if at trial a large proportion of the technical evidence is not disputed. The introduction of a staged reporting system would demand that a ‘Rolls Royce’ report be prepared only when the nature of the evidence, and the ‘seriousness’ of the case, justified it.

If introduced at the same time as changing the ‘gladiatorial’ culture in the criminal courts, pre-trial assessment of expert evidence has much cost-saving potential. Such assessment could take the form of meetings of experts, Daubert-style appraisal of expert evidence or even pre-trial hearings of expert evidence leading to juries being given the ‘agreed’ expert opinions without ever seeing an expert witness at trial.

The legal aid system is in danger of creating a professional class of expert witness willing to accept ‘meagre’ fee rates in lieu of the professional fees experts can attract elsewhere. If this is to be avoided, approaches such as those noted above will need to be explored in place of simple-minded attempts to reduce further the fees payable to experts under legal aid.

Executive Summary (Civil supplement)

This is a supplementary submission by the UK Register of Expert Witnesses to Lord Carter's Review of Legal Aid Procurement that focuses on the civil justice system. It has been prepared in response to a specific request from the Deputy Secretary to the Review. It is based on work undertaken in 2005 and draws together contributions from 238 expert witnesses listed in the Register.

In its November 2004 consultation paper on the use of experts, the Legal Services Commission (LSC) put forward proposals on expert fees. However, based as they were on guesswork, these proposals failed to arrive at a convincing analysis of the current position. We provide evidence from our own bi-annual surveys of expert witnesses that fees have increased by less than 10% above the rate of inflation since 1997.

From such poor groundwork, the LSC arrived at proposals that carried with them a significant danger of reducing the pool, and overall quality, of experts willing to work in publicly-funded cases. This negative effect is likely to be most acute for the Community Legal Service. Indeed, we predict a serious impact on supply and competition within the expert witness marketplace for civil cases if the 'meagre' fee scales on offer in the criminal arena are imposed on expert witnesses in the civil arena. This prediction is supported by 92% of our expert contributors.

We identify a number of inflationary pressures flowing from the Access to Justice Act 1999, and offer suggestions - involving a staged approach to the instruction of experts - for how the effects of these pressures can be ameliorated.

The LSC proposed removing the system of prior authorities. Whilst appreciating the difficulties of assessing applications for prior authorities, we consider its removal would have a serious impact on the supply of expert witnesses, a view endorsed by 82% of our expert contributors. We suggest that a staged approach to the instruction of experts would offer a way for the LSC to make more informed decisions on applications for prior authority.

The LSC identified problems arising from experts working without having adopted written terms of engagement. We welcome, as do 89% of our expert contributors, any pressure that can be applied to ensure expert witnesses adopt clear, written terms of engagement.