New obligations for experts
New reforms of
the justice system came into effect on the 1st April 2013. Lord
Justice Jackson was tasked with reviewing the current way in which costs of
civil litigation are managed in an attempt to introduce “proportionality” to the
costs of going to court. The new rules will also curtail “no win no fee”
arrangements and referral fees will be banned.
How does this all affect the expert
witness?
Prior to this
change the costs of a claim grew through the case and were largely
uncontrolled. Post reform costs must be proportionate and also have been
reasonably incurred both in terms of relevance and also the claim size. The
court will only allow costs that are proportionate and where they relate to the
matters of the case.
On this basis,
costs related to fees will be assessed by the court and if the total figure for
costs is not regarded as proportionate the court will make an appropriate
reduction, experts need to beware! It is essential that experts properly
prepare fair, reasonable and “proportionate” fee estimates for their
instructing solicitors to ensure that professional fees are not reduced at the
end of the case, taking into account that they should be reporting on the key
issues and not addressing matters that are of little relevance to the synthesis
of the case.
Other Jackson reforms affecting the
expert witness
Additionally
Jackson formalised the concept of concurrent expert evidence, “hot-tubbing” in
an effort to reduce time and cost. This process involves the experts giving
evidence concurrently and should enable the courts to focus on the synthesis of
the case and get at the relevant facts.
Comment
Nick Bevan,
Chartered Building Surveyor and experienced expert witness says “I have experienced hot-tubbing first hand
and found the process to be highly beneficial in the desire to achieve speed
and justice. It gave the experts the opportunity to be jointly cross examined
by both the Judge and Counsel and I’m sure significantly reduced the time spent
in Court. As for fee estimates, my view is that some experts fear compression
of professional fees but I’m firmly of the view that most experts are already
providing good value for money and are providing detailed estimates for their
services, so the reality is going to be no different post 1st April
than was the position prior to the reforms. The expert’s duty is to the Court
so providing a good service for proportionate fees is merely part of that
process”
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