Expert Witness Fees – The Facts
There are many issues surrounding the agreement, billing and payment of Expert Witness fees that have important ramifications for both the solicitor or other instructing party and the Expert Witness. In the current climate of austerity the problems of agreeing fees and then getting paid promptly have never been more acute.
The first distinction to make is that of work that is publicly funded, usually by the Legal Services Commssion (LSC), and that which is being paid for privately. In the case of publicly funded work the recent review of funding arrangements (see our article on this HERE) made some fairly drastic changes to how much experts are paid for their work, and in the case of court attendance where cancellation is with a minimum of 72 hours notice, that they would not be paid at all. Although the LSC contract is with the solicitor not the Expert Witness, it is the duty of the instructing party to make you aware of the restrictions of the contract that they have with the LSC and for you to accept these or not. Privately funded Expert Witness work is not subject to these restrictions and it is therefore up to the Expert and the instructing party to agree terms prior to instruction.
One thing that we have noticed since the changes to the Legal Aid system, which meant that some parties/cases are no longer eligible for public funding, is that we are increasingly seeing a mixture of public and private funding within the same instruction. This is because one of the parties may be eligible for Legal Aid and the other not. We would therefore recommend that you double check the funding status of all instructing parties prior to accepting an instruction and, where appropriate, agree separate terms with private payers.
A much misunderstood point is that, irrespective of whether the Expert’s Fees are being met with public or private funds, the Expert Witness’s contract is with the instructing party(s). This is to say that even if the client is entitled to Legal Aid, and it is up to the solicitor/instructing party to recover those funds from the LSC on your behalf, under the current LSC contracts the Expert Witness has no right to recover payment directly from the LSC. This is under review and there has been discussion about a pilot where the LSC would make payment directly to Expert Witnesses in exceptional cases but no firm plans have been published. This means that Expert Witnesses need to consider things such as the instructing party(s) ability to pay, including the increasing risk of firms of solicitors going bust!
With this in mind it is all the more important that Expert Witnesses consider the key factors in negotiating terms with an instruction party prior to accepting a case. The video link below, provided by our training partners Bond Solon, gives some very helpful tips in areas including:
- Setting terms and conditions
- Who is your contract with?
- Negotiating with instructing parties
- The Expert Witness’s right to say no