A no-win case for experts

Christopher Pamplin believes conditional fee arrangements could place expert witnesses in a compromising position. Dr Christopher Pamplin is editor of the UK Register of Expert Witnesses.

The scope for conditional fee work is likely to increase following the Lord Chancellor's announcement at the Law Society Conference in Cardiff.

As solicitors generally consider expert witnesses to be part of the litigation team, this widening of conditional fee arrangements for lawyers will put pressure on expert witnesses to accept instructions on the same basis. If the proposals are adopted, solicitors now financially obliged to ensure their case is strong will put pressure on experts to advise on the strengths and weaknesses of the case much earlier in the litigation process.

These pressures bring the role of the expert witness into sharp focus. The solicitor's view of the witness as a member of the team is not shared by the judiciary, which sees the expert as an independent adviser to the court.

An agreement by an expert witness to be paid on a conditional basis would infringe the maintenance and champerty rule. There is a fundamental difference between lawyers and experts that argues against payment of experts' fees ever being made conditional on the outcome of the case.

Experts are in a unique position in the UK legal system: they are the sole source of opinion evidence that the courts will consider.

It is generally the case that the expert for the plaintiff will express an opinion favourable to the plaintiff, while the expert for the defendant expresses one that is favourable to the defendant. It is for the court to decide which evidence it prefers.

How would the knowledge that experts might be working under a conditional fee agreement influence the weight the court placed on their testimony? In a no-win, no-fee arrangement, the expert would only be paid if his or her opinion wins the day. The implicit risk to the just operation of the litigation process is obvious.

The Bar has already experienced this. Barristers initially argued that conditional fees should not be applied to them, since a financial interest in the outcome of the case might lead to the temptation to 'over-egg the pudding' in favour of the client's case.

Lord Irvine's proposals make a definition of the expert's position crucial. If the Government allows experts to take on conditional fee instructions, their independent position would immediately be compromised. Yet preservation of their independent status demands prohibition of conditional fee ar rangements.

If we learn anything from the Bar's experience it is that the Lord Chancellor may not see it as his duty to prevent expert witnesses being employed on a conditional fee basis. If the Lord Chancellor's Department was to outlaw it, then barristers would have been excluded from the existing conditional fee system.

In the worst-case scenario, the changes will be implemented without any prohibition of experts' fees being made conditional. In this event, expert witnesses will come under inevitable pressure to agree to no-win, no-fee terms.

An insurance scheme to cover experts' fees would help to alleviate fears of 'biased' expert evidence. It is a parallel solution to that proposed by Lord Irvine to ensure that the client is able to pay the other side's costs should he or she lose.

There is a precedent for experts arranging favourable insurance cover in the UK Register of Expert Witnesses' Professional Indemnity Scheme. This scheme provides professional indemnity cover for expert witnesses in the event of their being sued for negligence in their expert witness work. It is likely that terms could also be negotiated to cover conditional fee situations.

Another outcome might be that expert witnesses unite to resist conditional fees. Both of the expert witness organisations have expressed their opposition to such arrangements.

Unfortunately, the majority of expert witnesses are not members of any organisation. In such circumstances, it seems unlikely that those who do belong to such a body will agree to be bound by a voluntary code that rejects conditional fees and, as such, places them at a competitive disadvantage to the rest.