Paying the piper

Just as there is a lively debate on ways in which litigation lawyers can or should be remunerated (many involving contingent or conditional fees, dependent upon the result of the case), lawyers are seeking ways in which the remuneration of experts can be made similarly dependent. Some proposals relate to an uplift in case fees, others to fees being conditional on success, others to the prospect of future work. In most cases this is doubtless a legitimate attempt to spread the risk of failure onto other professional advisers. However, can an expert's reward be proper if it is related to the outcome of a case they are giving evidence in?

Much is said about the impartiality of expert witnesses. In an often-quoted passage, Lord Wilberforce said an expert's evidence “should be, and should be seen to be, the independent product of [that] expert”. However, independence is a relative concept. Experts cannot be entirely apart from the party which instructed them; they are being paid by that party.

And, by the time the expert gives evidence, they will probably have spent considerable time with the clients and their lawyers – some degree of relationship will inevitably occur. It is unrealistic to expect an expert will not want their side to win.

Further, while experts must not mislead the tribunal to which they give evidence, they are not bound to stand between the parties, nor give identical evidence irrespective of whether they are representing one side or the other or acting as a court expert. As an expert for one of the parties, they must restrict themselves to the issues in the case and there is clear authority that despite an oath to tell “the whole truth” they are only obliged to tell the whole truth on matters asked about.

However, although independence and impartiality are not absolutes, there is no doubt an expert does owe some duty to the tribunal they appear before, and that duty incorporates a significant degree of impartiality and integrity. It may be difficult to draw the line between what is proper and what is improper in this context (for example the extent to which legal advisers can assist an expert on the form of evidence), but some things clearly fall on one side of the line of propriety.

Lawyers too have duties to the court as well as professional obligations including similar elements. Many in the profession are uneasy about the remuneration of lawyers being related to the success or failure of their litigation. They are concerned it will encourage unprofessional practices, though there are arguments on both sides of the debate.

But a lawyer's role is different from that of an expert. A litigation lawyer is employed to put their client's case at its highest irrespective of personal views of the case's merits.

But, an expert witness with a direct financial interest in the case's outcome would face increased pressure to give an opinion more favourable to the client than their genuine opinion which they are specifically employed to give. To maintain credibility, an expert must be seen to be free from the suggestion that their opinion has been compromised by financial considerations. Any such financial interest is incompatible with their duty and professional obligation to be independent.

Whatever views there may be on the remuneration of lawyers, for an expert witness to have a financial interest in the outcome of a case they give evidence in very clearly falls the wrong side of the line which defines acceptable from unacceptable practice.

Gary Hickinbottom is a partner at McKenna & Co.