Ministry of Justice – Fee capping
Ministry of Justice – Fee capping MoJ CP 18/09 Survey Form

Expert Fees Under Attack

The Ministry of Justice has recently put out a consultation paper about proposed funding reforms in the legal aid system. The bulk of the proposals is about payments to lawyers and need not, happily, concern experts. Part three of the document, however, addresses expert’s fees exclusively. The proposals cover payments to experts in both criminal and civil cases.

It is proposed to set rate bands, each with a maximum. These are to be based on the Ministry of Justice guideline rates, which are those that experts know from payments made by the courts for appearance to give evidence in criminal cases. The rates of these payments are reviewed annually but those reviews have not resulted in any increase for several years, effectively cutting them by the cumulative effects of inflation. Added to that, the proposals make it clear that payments at the top end of the band would be rare.

You can read the proposals regarding experts’ fees here and the fee bands and limits appear here.

This document has profound and far–reaching implications for all experts who accept instructions in legally aided cases. Experience leaves little doubt that, once introduced, the rates will not be increased to maintain real values and the bands will be narrowed. Despite the ministry’s protestations, it is transparently clear that this exercise is nothing to do with objective reasoning or best value for money: it is wholly concerned with cutting any and all expenses by any means in order to achieve a preset budget requirement.

The LSC data were collected many years ago and, despite the long lapse in activity on proposed expert fee scales, there does not appear to have been any attempt to gather any in the interim. The original data were acknowledged by the LSC to be of poor quality and unreliable; additionally, they is now outdated.

Looking at the propose band rates, you will immediately be struck by two or three pretty obvious features. There seems to be little understanding of the world of experts and expertise; for example, accident and emergency specialists appear in general medical – so do paediatricians! Medical practitioners appear under forensic scientist, as do accountants and architects. One can understand some of the difficulty but it’s a pretty rough and ready way to go about a matter requiring clear, well–informed and unambiguous classification. You will also have noticed, no doubt, that the hourly and day rates are identical for seven of the fourteen categories, which begs the question why they are separated.

As for the rates themselves, they are, in the Society’s view – and probably yours – little short of risible. For example, a hospital specialist in the NHS of middle range seniority with the lowest level of merit award earns close to £470 per day, which the proposals make clear would only be rarely attained. Furthermore, that specialist would, in the course of normal employment, have no other costs or overheads and would enjoy the benefit of full supporting staff. Expert evidence work must be done as a private undertaking, bearing all additional costs. Additionally there is lost time, such as travelling, which will be reduced to £40 per hour, and cancellation, for which there will now be no allowance whatever. The vast majority of experts have the option of other work; the NHS consultant would look to earn £2–300 per hour in private practice and would not be vulnerable to the sort of dangers to his livelihood seen in recent, high profile cases involving expert evidence in criminal cases. Paediatricians feel particularly exposed when assisting in child protection work.

It is worth remembering that Lord Justice Auld in his 2001 report described experts fees as "meagre for professional men in any discipline", adding "I am not surprised that solicitors complain that they have often had difficulty in finding experts of good calibre who are prepared to accept instructions for such poor return."

He went on to say "The best expert witness in most cases is likely to be one who practises, as well as giving expert evidence, in his discipline, rather than the ‘professional’ expert witness – one who does little else. Justice is best served by attracting persons of a high level of competence and experience to this work. If we expect them to acknowledge an overriding duty to the court and to develop and maintain high standards of accreditation, they should be properly paid for the job. I hope that the Legal Services Commission will take an early opportunity to review and raise appropriately the levels of their publicly funded remuneration."

Well, here we are exactly nine years later, finding that things have actually gone in exactly the opposite direction. The levels of remuneration have gone down by not going up and the current proposal is to reduce and restrict them even further. In the current consultation paper, the Ministry of Justice fully accepts that there is a real and ever–present risk that experts will decide to participate no longer. Yet it is prepared to take that risk for a potential maximum saving of less than a half of 1% of the annual legal aid budget. Even worse, it only expects to achieve that insignificant saving "in the longer term".

This topic was the subject of a lively discussion at the Society Conference last month, when speakers from the Legal Services Commission and the Courts’ National Taxing Team presented the proposals, heard some powerful opinions from our experts and addressed some testing questions.

Disclaimer: You are specifically informed that the Society of Expert Witnesses is not qualified to give, and does not hold itself out as competent to give, financial or legal advice, for which you should consult a professional adviser. Whilst this information is given in good faith, the Society does not vouch for its factual accuracy.