Experts' fees prove a lottery

Elizabeth Davidson reports on arguments over legal privilege and the steady rise of witness fees for written reports.

An important Court of Appeal case on the Master of the Rolls, Lord Woolf's new civil regime will push the importance of independence to the forefront of expert witnesses' agenda.

Lord Woolf's recommendations that legal privilege be lifted from expert witnesses' reports are due to be challenged at the end of this month.

The court, assisted by amicus curiae Rory Phillips of 3 Verulam Buildings, will decide whether or not the laws lifting privilege from certain parts of expert reports, introduced as part of the Woolf reforms, are legally valid.

Given the pace of change in civil litigation, independence is an issue which both lawyers and experts should keep a close eye on.

At the Bond Solon expert witness conference at Westminster on 12 November, Ali Malek QC of 3 Verulam Buildings, advised that the problem of the expert becoming “too close to the adversarial team” is one that lawyers should be aware of. Malek urged lawyers to avoid becoming involved in drafting experts' reports or discussing the merits of their case in front of the expert.

The conference, addressed by Lord Woolf, coincided with the release of a fees survey conducted among more than 700 experts by Bond Solon, an expert witness training body, the results of which make interesting reading for solicitors keen to gain leverage in future negotiations with experts.

According to the survey, hourly rates for report writing are rising. Of the 712 respondents, 50 charged less than £50, 613 charged between £50 and £200, and 27 charged more than £200. One in six experts charge more than £1,000 for a written report, a figure which has not changed in the last two years. Of the respondents, 58 charged more than £1,500.

More than 6 per cent charge over £150 per hour for giving evidence at court, although almost half the experts responding had not appeared in court in the previous year.

At the conference, forensic accountant Nick Whitaker, a partner at Pannell Kerr Forster, said:”We have two tendencies – one is the drop in litigation in process, the figure of a 35 per cent drop is quoted.

“Clearly a proportion of this is litigation delayed by the parties to see the lie of the post-Woolf land and we expect this to reverse, particularly outside London, in the forthcoming period with a bulge of work in the new year.

“We are also seeing in smaller cases real attempts by solicitors to cut costs, usually under the proportionality principle. What might have been an instruction for a reasonably standard expert report, say, on personal injury quantum, being sidelined in favour of checking or preparing a simple spreadsheet giving the arithmetic answer with little of the usual verbiage. Costs in the thousands are reduced to hundreds”

Although there is less litigation and increased cost-cutting, according to Whitaker the predicted bugbear of only one expert per case is not materialising. Whitaker claims to have seen no court-appointed experts and says single joint experts are “few and far between”.

However this is not backed up by the Bond Solon survey, which claims 45 per cent of experts have been asked to work as a single joint expert – a type of work which has only been available since the start of the Woolf reforms on 26 April.

Malek QC says: “My experience is it doesn't save any money in the long-run because the parties will appoint their own experts so that the arbitrator has access to all the facts.

“There is a problem that the single expert will take over the role of the judge because the judge will rubber stamp what the single expert says. He will place greater emphasis on what the expert says. In complicated litigation its simply not going to happen, although it's great for smaller litigation.”

A surprising 17 per cent of experts thought they should be able to work on a conditional fee basis – a practice which runs contrary to the advice of both the Law Society and the Expert Witness Institute.