Lord Woolf's proposals to reform court procedures have rightly been identified as of crucial importance to expert witnesses, yet the Government's initiatives to reform legal aid could be equally significant.
The cost of legal aid now stands at around £1.4bn, double what it was five years ago. As an entitlement-based scheme the overall cost of legal aid can only be controlled by reducing remuneration rates or eligibility levels. In the early 1980s about 70 per cent of the population was eligible for legal aid – now it is around 50 per cent.
The White Paper Striking the Balance proposes radical reform. It introduces a cash-limited but planned legal aid scheme with funds allocated under block contracts with franchised solicitors. Regional legal services committees would be set up to help identify need in particular areas. There would also be special arrangements for contracts in multi-party actions and high-cost cases.
We now know that there is unlikely to be legislation on legal aid before the next election. However, a great deal is being done under existing legislation.
The Legal Aid Board has already successfully run pilot schemes. Franchising, for example, was piloted for two years. The non-solicitor agencies pilot began in 1994, and its second phase will further test block contracts in the sector. It will also soon embark on piloting of contractual arrangements with solicitors, and mediation pilots under the Family Law Act will begin in 1997.
It will be several years before the board expects to see major reforms affecting the majority of civil and criminal legal aid cases. It believes this approach will dovetail with the Woolf reforms. The Lord Chancellor has announced that he intends to achieve implementation of the key elements of Lord Woolf's proposals by 1 October 1998. The Woolf reforms will therefore be established before block contracting of civil legal aid might be introduced.
For the expert witness these changes will have a variety of effects. Although it will be some years before legal aid reforms have an impact on most cases, it is likely that pressure to control legal aid expenditure will continue. A more systematic approach to funding experts in legal aid cases, rather than leaving so much to be determined on taxation at the end of the case, is expected.
The reforms are likely first to have an impact in the limited number of multi-party actions and high-cost cases for which the board will use its contracting procedures. It will consult about the way in which price will be taken into account in the tendering process and how expert fees should be dealt with under the contract. The present view is that the board would like to see solicitors proposing to undertake complex litigation at public expense provide detailed case plans, realistically costed, for taking the litigation to the next key stage. Contracts entered into would then contain binding cost limits which could not be exceeded without the authority of the board. It would expect an agreed price for the work to include counsel's fees and experts' fees, but it would also expect the solicitor, before submitting a case plan with the tender, to have agreed with the experts in advance the likely extent and cost of the work.
In the long term, it remains to be seen how expert fees will be dealt with in any future contracts for solicitors to undertake blocks of cases for an agreed unit price. One option suggested in the White Paper is for some expert fees to be paid outside the block contracts from a separate fund. Another option would be for experts' fees to be included in the contract price, but careful auditing might be needed to ensure that solicitors do not inappropriately cut back on their use of experts. A third option would be for the board to contract directly with experts to provide an agreed number of reports of a particular type.
Provided solicitors and experts make full use of their rights under the existing regulations, legal aid work contains a guarantee of rapid and reasonable remuneration. Payments on account are processed quickly and this should continue under any reformed scheme.
Meanwhile, experts with an interest in legal aid work should keep an eye on reform. While the precise structure of any new scheme is uncertain, its foundations are already being laid.