In The Lawyer of 23 May 1995 ('Paying the Piper'), I suggested that an expert witness having a financial interest in the outcome of a case in which they give evidence, clearly falls the wrong side of the line separating acceptable from unacceptable practice.
That view is not universally held (for example, Daniel Silver's letter 'Two sides of same coin', The Lawyer 30 May), although I have not yet heard any contrary argument which I find sufficiently compelling.
The Judicial Committee of the Academy of Experts has recently issued a guidance note on the subject of contingency fees and experts.
The committee comprises Lord Slynn, Lord Neill, Lord Justice Saville, Lord Justice MacDermott, Lord Johnson, Justice Garland and Judge Bowsher QC.
Understandably, with an issuing committee such as that, the entire note is worthy of full consideration.
However, on the subject of my earlier article, it includes the following:
"The judicial committee considers that any form of contingency fee arrangement for expert witnesses is incompatible with the experts' duty of independence and impartiality.
"A contingency fee means that the expert witness has a direct financial interest in the outcome of the case.
"Such a direct financial interest must increase the pressures on expert witnesses to give evidence that favours their client. Even if an expert witness resists this pressure, independence may still be compromised.
"An expert witness must not only be independent, he must be seen to be independent."
As I indicated in my earlier article, in my view "independence" remains a relative concept, but the Judicial Committee of the Academy of Experts clearly considers that any form of contingency fee will seriously compromise an expert's necessary degree of independence.
I am pleased – but not surprised – that my views are shared by such eminent company.
McKenna & Co
London EC1A 4DD.