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Despite the best efforts of Lord Woolf, the cost of instructing an expert witness continues to rise. According to the 1999 Expert Witness Survey, published by expert witness training company, Bond Solon, the increase in the cost of commissioning expert reports has far exceeded the rate of inflation. More than 14% of the 712 experts surveyed demand more than £150 per hour to produce a report, compared to 8% two years ago.The evidence for the steep rise in experts’ fees is not limited to the Bond Solon survey. In the financial year 1997-98, the Legal Aid Board’s bill for expert witnesses amounted to £75m. For 1998-99, it was £100m.“It seems that judges are controlling the number of experts and timetables, but have not been able to bite into experts’ fees,” says Mark Solon, the survey’s author. “If the concept of proportionality is to work, judges must control this.”Another finding was that 46% of expert witnesses have no formal terms of engagement drawn up when accepting instructions from a solicitor. This figure has increased from 42% since the 1997 survey.In normal circumstances, this does not necessarily represent a problem. An exchange of letters between solicitor and expert setting out the terms and scope of an expert’s report forms a binding contract. Additionally, in the event that a winning party does not recover the expert’s fee on taxation, the expert is still guaranteed his fee, provided it was agreed in advance.However, as Garretts’ litigation partner, David Harlock points out, the instructing party is entitled to withhold all or part of the fee if the expert has been negligent, misunderstood the brief or, as Harlock puts it, “gets a mauling in court”. In this situation, he says, a formal ‘terms of agreement’ that covers all the relevant points such as deadline, price and full details of the brief, makes life easier for both parties.That is, of course, if the expert can get the instructing solicitor to agree. Paul Crowther, marketing director of medical expert witness provider Mobile Doctors, has found that some solicitors are reluctant to draw up a contract. “We operate on very low margins and in the event that a solicitor refuses to pay, we always fight it vigorously,” he says. “A signed contract makes life much less tricky.”One surprising result also thrown up by the survey is the proportion (17%) of expert witnesses that want the right to accept instructions under conditional fee arrangements (CFAs). CFAs may be the flavour of the month at the Lord Chancellor’s Department for solicitors and, eventually, barristers but the prospect of an expert’s fee being tied to the outcome of a case would appear to be remote.Given that the Civil Procedure Rules (CPR) stress the expert’s duty to the court above the client, a CFA would bring the independence of the witness into question. However, some have argued that if solicitors can work under a conditional arrangement, why not experts? They would certainly be putting their money where their mouths are.But there is one crucial difference. Solicitors do not appear in the witness box and experts will certainly be challenged in court as to the impartiality of their evidence. The draft code of conduct for expert witnesses, which is expected to be formalised as a practice direction (see pages 20-21), expressly prohibits the practice.Solon, however, argues that the principle behind the introduction – access to justice for middle-income Britain – applies equally to the cost of experts. If a claimant cannot afford the fees of a solicitor or a barrister without a CFA, then presumably they cannot afford the expert’s fee in the event of an adverse result.“The reality is that the legal landscape will change substantially in the next year,” Solon says. “Experts need to review the way they charge.”If the courts have yet to use the CPR to drive down the cost of expert witnesses, they have, according to the survey, seized on one provision of the new rules with alacrity – appointing single joint experts. Of those who responded to the survey, 45% had already been instructed as single joint experts.The issue of whether joint experts should be appointed at all remains a topic of debate (see articles, pages 22-23). At face value, it would appear to reduce the overall demand for experts, but the effect could be quite the reverse. Where a single expert is appointed, and is therefore unable to provide confidential or opinionated advice to either party, the temptation will be for claimants and defendants to appoint their own ‘shadow’ experts.The survey does not provide statistics for the extent of this practice, but Solon has noted that “a number” of the experts that have gone through his training programme have already been asked to act in this way. As one door closes for experts, it seems, another opens.

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