High noon for 'hired guns'
24 November 1998
Mark Solon and Catherine Bond say the good times are over for expert witnesses, as the Lord Chancellor's Department plans to restrict their use and cut back on their fees. Mark Solon and Catherine Bond are directors of witness training company Bond Solon Training.
As litigation has boomed over the past 10 years, more experts have entered the legal marketplace. Lord Woolf, the Master of the Rolls, in his Access to Justice report even wrote of an "expert witness industry". But things are about to change. The advent of contingency fees and the new court rules may have a big impact on the way experts work.
In the old days of legal aid (provided there was prior approval from the Legal Aid Board for the instruction of an expert) the expert could rest assured that they would be paid. Often they agreed to be paid when the solicitors themselves were paid by the LAB.
Sometimes the solicitor paid the expert from the office account, although they tried to avoid this. There was always the hurdle of taxation of costs and sometimes the expert's fee was reduced. Some experts bumped up the hourly rates to allow for late payment or possible reduction.
Private clients may have balked at experts' fees - particularly if the expert advised that the case was hopeless - but provided the fees were agreed in advance, there were few problems.
Cases often had many experts, some of whom were of the hired-gun variety. Judges may have complained at the relevance of some of the experts, or at their independence, but the industry still continued to grow.
But the expert witness industry will face significant changes next year. Many experts have not yet woken up to the new world where no win-no fee will be common, and where new court rules will put into effect many of the Woolf proposals.
We are seeing the greatest changes in the expert witness industry for 100 years. This may be the start of the recession for expert witnesses, much as the whole legal profession is about to face unprecedented changes.
Questions being asked include: Who should pay the expert witness in the future? Will justice be limited to those who can afford the best? Will good experts refuse to do court work, leaving second rate experts to pick up the pieces?"
Ian Burns, director general of policy at the Lord Chancellor's department (LCD), spoke at the Bond Solon annual expert witness conference on 6 November. He said experts represented a significant cost to his department - some 8 per cent of civil legal aid and 6 per cent of criminal legal aid.
He added that the amount paid to experts had risen by 15 per cent in the previous year, making it the fastest rising cost in the legal aid budget. Some u75m was paid to experts in 1997/98, out of a total of u793m paid out to fund civil and family cases.
The LCD must be looking at reducing, or at least controlling, the payments to experts. As it is, the new civil court rules will mean big changes next year for expert witnesses. One basic principle is the drive towards case management by the courts.
The court can restrict the calling of expert evidence, requiring permission for a particular expert to be involved. This permission may be withdrawn. The court may also direct that there only be one expert given instructions from both sides in a case.
Experts' fees will be controlled by the court. There will no longer be excessive charges, out of proportion to the amount of a claim. Surveys have shown fees of up to u400 per hour. As yet, there are no guidelines on the capping of fees.
Experts can no longer be "hired guns". Their duty is now to help the court, not the party paying their fees. There is now a general requirement for experts to give their evidence in writing. The days of long cross-examination in the witness box may be over and experts in court will be much rarer. Courtroom presentation will no longer be the deciding factor.
The combination of new court rules and legal aid reforms indicate a new regime for experts that may mean the end of easy money for experts. They will need to be fully aware of what is going on and be trained in the new skills needed. The expert witness industry referred to by Lord Woolf in Access to Justice is about to be downsized.
Expert Witness Survey
79% of experts do not think experts should be able to work on a conditional fee basis.
67% said they would not do so even if allowed.
45% said there should be no uplift in their fee even if their "side" won.
39% said an insurance company should pay their fees.
10% have already been asked to work on a conditional fee basis.
46% have been asked to defer fee till the end of the case.
23% have been asked to work for free.
based on a survey of 482 expert witness by Bond Solon