What can Expert Witnesses charge for attending Court?

According to Regulation 20 of Part V of the Costs in Criminal Cases (General) regulations 1986, an expert witness is ‘a person of any calling, profession or trade who gives evidence because of his expertise.’ The guidance for attending a hearing for a criminal matter is as follows:

4.2 – Where the attendance of an expert involves only normal preparatory work (up to one hour) it is usual to agree and pay an attendance fee only, which is inclusive of this. Where preparation is more extensive (exceeding one hour) payment may be split between the two elements of preparation and attendance, and a fee may be paid for preparatory work in addition to the attendance fee

4.3 – In determining the attendance fee for an expert witness who has earlier prepared a written report for which a separate fee is payable it will be necessary to take account of the fact that the amount of preparatory work needed for the attendance is likely to be less than that required of an expert newly introduced to the case.

4.5 – An expert warned to attend court may sometimes be cancelled at relatively short notice, for example, because of a change of plea. The expert should not as of right be paid a fee for the cancelled attendance, but if work in preparation for the attendance has been reasonably carried out, an appropriate fee may be paid. Each case should be considered on its merits where preparatory work has been undertaken.

4.6 – Short notice of a change of date, or a late cancellation (see paragraph 4.5 above), may also involve an expert in expenses, either in the loss of alternative work that day or in the engagement of a locum. Whilst the expert should try to mitigate the consequences of a late change of date, it may not always be possible to re-arrange other work or to cancel a locum appointment. It is not practicable to give firm guidance on all the situations which might arise, and where a claim is made it should be considered on its merits. Care should obviously be taken to avoid late cancellations and changes.

It is worth noting that there are currently no scales of guidance set under the Regulations in relation to court attendance for expert witnesses. Paragraph 4.8 underlines this but refers to Appendix 2 of the Regulations where a scale has been designed in order ‘to assist officers determining the fees payable by providing a point of reference on quantum for use when exercising their discretion in determining claims.’

The scale is as follows:

Preparation (examination/report) £70 – £100 per hour
Attendance at court (full day) £346 – 500

The figures shown are based upon allowances made throughout England and Wales and it is to be reviewed annually. Furthermore, it makes it clear that each case needs to be considered individually and that the guidance provides ‘neither a minimum nor a maximum limit, merely a guide to the levels of allowances in normal circumstances’. However, they expect that exemption from the guidance will only ‘arise exceptionally’.

Court appearances funded by Legal Aid in civil cases will be subject to the hourly rates as set out in the new Civil Funding Order. Again, Schedule 6, Section 2, ‘General Provisions relating to experts’ sets out that the LAA will not pay any cancellation fee charged by an expert, where the notice of cancellation was given to the expert more than 72 hours before the relevant hearing or appointment.

Allowances for travelling to court are payable in addition to other expenses and is subject to the same guidance as detailed above. Should the need arise, paragraph 8.3 addresses travel by air, stating that travel by air may be allowed only if the court is of the opinion that:

a) There was no reasonable alternative to travel by air and the class of fare paid was reasonable in all the circumstances; or,
b) Travel by air was more economical in the circumstances taking into account any savings of time resulting from the adoption of such mode of transport and its consequent effect in reducing the amount of allowances payable under these regulations.

The intention of the MOJ and LSC is to review each policy between 3-5 years after it has been implemented. In this case, the review of expert fees will form part of a wider review of all new Legal Aid Reform policies implemented following the November 2011 Consultation.