Cancellation fees are the norm

A survey shows that the whole gamut of expert witnesses is quick to charge cancellation fees, writes Christopher Pamplin. Dr Christopher Pamplin is editor of the UK Register of Expert Witnesses. Cancellation fees are a perennial bugbear. Solicitors wince at them and taxing masters frown on them. Yet what are expert witnesses supposed to do when hearings are cancelled through no fault of their own? Grin and bear it? If they lose business as a result, they are surely entitled to some recompense. But just how many experts levy cancellation fees, under what circumstances and for how much?

A survey of the fees charged by experts listed in the UK Register of Expert Witnesses was conducted by JS Publications late last year. The aim was to gather information for the benefit of other experts, though the answers will be of wider interest to the legal profession as a whole.

In the interim report of his inquiry, Lord Woolf drew attention to the inconvenience suffered by medical practitioners, in particular, when hearings for which they have been booked, are cancelled or postponed at short notice. Having set aside as much as a day to give evidence in court, they suddenly find that their presence is not required.

From a purely financial point of view this might not matter too much, if it left them able to undertake other remunerative work. Unfortunately, though, it is seldom the case that operating schedules or patient consultations can be rearranged that quickly.

Lord Woolf concluded that both lawyers and the courts owe doctors greater consideration, and he urged that steps be taken to limit the need for them to attend court. It was one of the factors that led him to recommend that, in 'fast track' cases, expert evidence should be limited to written reports.

Medical experts are not alone, of course, in suffering inconvenience and loss when hearings at which they are due to give evidence are cancelled at the last minute. Expert witnesses from other professions may find it no less difficult to plug the gaps in their work schedules that such cancellations can leave.

And so the practice has grown up among experts of all kinds of stipulating in their terms of business that they will charge a fee in such circumstances. In many cases, they calculate this on a sliding scale, the amount they charge being dependent on the length of the notice they received.

The reasons for including cancellation fees in the survey were threefold. Firstly, how general is the practice of charging them among the different professional groups represented in the UK Register of Expert Witnesses? Secondly, how short does the notice period have to be for experts to feel justified in charging a cancellation fee? And lastly, of course, what amounts are being invoiced for different periods of notice.

Doctors comprised the largest group of experts responding to the survey – 166 out of a total of 547.

After them came 116 engineers, and then 68 scientists, with rather smaller sub-totals for professions ancillary to medicine, surveying and valuation, accountancy and banking, and architecture and building.

Although not specifically asked whether criminal cases were undertaken, it must be assumed that all the respondents who said they charged cancellation fees had in mind the civil cases they worked on. There is, after all, no way in which an expert witness can stipulate in advance the fee he or she is to receive for giving evidence in a criminal court; nor is there any statutory provision for paying a cancellation fee in the event of a trial being postponed or abandoned. The most an expert can hope for in such circumstances, is that the determining officer makes some discretionary payment for financial loss – and to secure that the expert would have to show that the shortness of notice ruled out the possibility of undertaking other remunerative work.

As regards cancellation fees, the information gathered relates to civil litigation, and it can be summarised as follows:

What the survey illustrated is that well over half the experts who returned the questionnaire reckon on charging cancellation fees. That readiness to do so is particularly marked among doctors and other medical professionals; and that those experts who charge for cancelled hearings set their fees for them at much the same levels, regardless of profession.

The survey shows that the practice of experts charging cancellation fees is well established, at least among those for whom expert witness work constitutes a substantial part of their workload.

It is quite usual now for doctors in this category to make such charges, with 78 per cent of them doing so when they get less than 24 hours' notice of a cancelled hearing and 63 per cent doing so if the notice given is between one and seven days. For the time being, though, it would seem that experts in other professions are somewhat less likely to make a charge, the corresponding percentages for them being 52 and 34. Even so, it seems likely that the practice will grow among all professional groups within the expert witness community, as more and more experts adopt model Terms of Engagement such as those devised by the Academy of Experts.

The amount of the fee charged for a cancelled hearing seems also to have stabilised, in this case right across the field. On average experts making such a charge, levy between two-thirds and three-quarters of their full fee, when they receive less than 24 hours' notice of the cancellation and around half the fee if the notice they get is between one and seven days.

Since the arrangement bet-ween an expert witness and the solicitor instructing him is a contractual one, the solicitor is personally responsible for paying any fees which have been agreed between them. If the expert's Terms of Engagement provide for payment in the event of a hearing being cancelled and the solicitor has agreed those terms, then that, too will be binding on the solicitor.

The only ways in which the solicitor can hope to mitigate the cost are (a) to seek to persuade the expert that no fee should be charged if the cancellation or postponement is notified at least seven days, say, before the hearing is due to take place, and (b) to ensure that he gives the expert witness prompt notice of the cancellation should it occur.

All too often in the past expert witnesses have been among the last to be told. Increasingly, in future, that could prove to be not merely discourteous but expensive as well.