EXPERT witnesses should not be paid on a contingency fee basis because their independence could be called into question if they have a direct financial interest in a case, say leading members of the judiciary.
Law Lord, Lord Slynn, says solicitors should also be prevented from providing incentives of future work in order to obtain favourable opinions from experts.
Guidance notes on contingency fees, issued last week by the Judicial Committee of the Academy of Experts, say reports and evidence given by experts must “genuinely reflect” independent opinions.
The guidelines come only weeks before the 16 June release of Lord Woolf's interim report on access to civil justice, which is known to include references to expert witnesses. The Law Society is also developing a code of practice about the subject.
Chaired by Slynn, the judicial committee includes members of the House of Lords, and judges from the English and Northern Irish Courts of Appeal, the Scottish Court of Session and the High Court.
The committee expresses concern that experts may place “undue emphasis” on points which favour their client, and says some solicitors have told experts they will be named on a firm's approved list if they agree to specific terms of payment.
“The judicial committee considers that this practice is objectionable and does compromise the expert's independence and impartiality,” say the guidelines.
Committee secretary Julian Cohen, a solicitor advocate with City firm Masons, says it is difficult to gauge how prevalent the practice is.
“It's one of those very hard questions,” he says. “The academy, via its members, became aware that there was increasing pressure on expert witnesses to work on a contingency fee basis.
“Certainly it's something that seems to be on the increase and it's something that the judicial members of the academy thought should be knocked on the head early on before it
became prevalent, if it is notalready.”
The committee, which started its investigation into the problem last November, is distributing the guidelines to its 1,000 members.
“It is clearly established law that expert witnesses in adversarial proceedings must give the court, or tribunal, their independent, objective and unbiased opinions on the aspects of the case that come within their expertise,” say the guidelines.
“The expert witness is not an advocate employed on behalf of a party.”