Are Expert Fees Recoverable as Costs?

Expert evidence can be one of the largest expenses in litigation, particularly in clinical negligence, serious personal injury and complex commercial disputes. A case may require several expert witnesses, with fees incurred for reviewing documents, preparing reports, attending conferences, answering questions and giving evidence at trial.

So, if you win your case, are expert fees recoverable as costs?

In principle, reasonable expert fees can form part of the costs recovered from the opposing party. However, paying an expert does not automatically mean that the whole fee will be recoverable.

The court can consider whether the expert evidence was reasonably required, whether the amount charged was reasonable and, where relevant, whether the expenditure was consistent with the approved costs budget.

There can also be additional questions where an expert has been instructed through an agency rather than directly.

Are expert fees recoverable?

Where a party is entitled to recover its legal costs from another party, reasonable fees paid to an expert may form part of the recoverable costs. This can include fees for work such as:

• reviewing records and other evidence;
• preparing an expert report;
• considering another expert’s report;
• attending conferences with solicitors, counsel and other experts;
• preparing joint statements;
• responding to questions about a report; and
• preparing for and attending trial.

However, the fact that the receiving party incurred the expenditure does not automatically make it recoverable. The amount claimed can still be challenged by the paying party.

Were the expert costs reasonably incurred?

One of the first questions may be whether it was reasonable to obtain the expert evidence in the first place. In many cases, the answer will be straightforward. A clinical negligence claim, for example, may depend upon evidence from medical experts addressing breach of duty, causation, condition and prognosis.

Likewise, a complex commercial dispute might require forensic accountancy, valuation or industry-specific evidence.

Problems can arise where the paying party argues that the work was unnecessary, duplicated evidence already available or went beyond what was reasonably required for the litigation.

The receiving party should therefore be able to demonstrate why the expert was instructed and how their evidence related to the issues in dispute.

Can an expert’s hourly rate be challenged?

Yes; the fact that an expert charged a particular hourly rate does not necessarily mean the opposing party must pay it in full. The paying party may challenge the rate as excessive.

Whether an expert fee is reasonable will depend on the circumstances. Relevant considerations may include the expert’s speciality, experience, the complexity of the case and the nature of the work required. A highly specialised medical expert dealing with a complicated injury may reasonably command a substantial fee.

However, the receiving party may still need to justify the amount claimed if it is challenged during assessment.

Can the amount of time spent by an expert be challenged?

The rate is only one part of the calculation. The paying party can also question the amount of time spent. For example, an expert may charge a reasonable hourly rate but record a significant number of hours reviewing documents or preparing a report.

If the paying party considers that the time is excessive, this can form part of a challenge to the expert costs. This is particularly important in cases involving large volumes of records.

The assessment is not simply:

Was the expert qualified to charge this rate?

It can also involve:

Was it reasonable for the expert to spend this amount of time carrying out the work?

Both factors can affect the eventual recovery.

What happens where there are several expert witnesses?

High-value litigation frequently involves multiple expert witnesses. A serious clinical negligence claim, for example, could require evidence from several medical disciplines, while a substantial commercial case could involve accountants, valuers, technical specialists and other experts.

There is nothing inherently unreasonable about using several experts where the issues require it. However, the more experts involved, the greater the potential for disputes about duplication.

A paying party might argue that two experts considered the same material or that certain work could have been dealt with by another expert already instructed.

When preparing or challenging a Bill of Costs, it is therefore important to look beyond the total expert fees and consider the work performed by each expert.

Expert fees and costs budgeting

Costs budgeting can have a significant impact on the recovery of expert expenditure. Where a case has been costs managed, anticipated expert costs may have been included within the relevant phase of the approved or agreed budget.

If expenditure later substantially exceeds what was budgeted, this can create difficulties when the receiving party attempts to seek to recover the additional amount. Solicitors should therefore monitor expert expenditure as the case progresses rather than waiting until the end of the proceedings.

If circumstances change significantly and substantially greater expert expenditure becomes necessary, consideration may need to be given to whether a variation to the costs budget is appropriate.

Expert expenditure should therefore form part of active costs management throughout the litigation.

Are medical agency fees recoverable?

A more complicated issue can arise where a medical expert is instructed through a medical reporting organisation or other agency.

The amount invoiced by the agency may be greater than the amount paid to the underlying expert.

The difference can represent the services provided by the agency.

This raises the question of how much of the overall charge can properly form part of the receiving party’s costs.

The issue has received significant attention through JXX v Archibald, litigation concerning the recoverability and evidence required in relation to medical agency fees.

The Senior Costs Judge concluded in the underlying decision that some evidence was required about how agency fees were calculated, but rejected the defendants’ argument that there should be a detailed solicitor-style breakdown on an individual file basis. The court also determined that the mark-up on the underlying expert fee should be limited to no more than 25%.

The issues are not finally settled. Permission to appeal has been granted and the Court of Appeal is expected to consider the dispute in 2027.

For the time being, the case demonstrates why agency charges should be considered separately rather than assuming that the entire amount invoiced for a medical report will automatically be recoverable.

Is an agency fee the same as the expert’s fee?

Not necessarily. If an expert charges £1,000 for preparing a report but the medical agency invoices the solicitor a higher amount, there may be two components to consider, which are the underlying expert fee, and the additional agency charge. This distinction can become important during detailed assessment.

The paying party may request evidence of the underlying expert charge and question the additional amount. The receiving party may then need to demonstrate why the overall fee is recoverable.

This is likely to remain an important issue for personal injury practitioners while the JXX v Archibald litigation continues.

What happens when expert fees are challenged?

Where the parties cannot agree the recovery of legal costs, expert fees can be disputed through the detailed assessment process. The receiving party may include expert fees and other disbursements within its Bill of Costs. The paying party can then raise objections through Points of Dispute.

Those challenges could relate to:

• the necessity of the expert evidence;
• the expert’s hourly rate;
• the amount of time claimed;
• duplication between experts;
• the number of experts instructed;
• costs budgeting issues; or
• additional agency charges.

The receiving party can respond through Replies and provide further evidence where appropriate. Many disputes are resolved through negotiation, but unresolved issues can ultimately be determined by the court.

Are all expert fees recovered if you win?

Not necessarily. Winning the substantive case and obtaining a costs order gives the receiving party an entitlement to costs. It does not guarantee that every item of expenditure will be paid in full. This distinction is important.

A solicitor may have reasonably decided that expert evidence was necessary to pursue the case, but the amount ultimately recoverable from the paying party can still be disputed. The difference can be particularly significant in cases involving multiple experts or substantial medical evidence.

For receiving parties, careful record keeping and ongoing monitoring of expert expenditure can help support recovery. For paying parties, expert fees can represent an area where significant savings may be available if the expenditure appears unreasonable, excessive or unsupported.

How ARC Costs can help with expert fees

ARC Costs regularly deals with cases involving substantial expert expenditure, acting for both paying and receiving parties.

For receiving parties, we can assist with preparing Bills of Costs, presenting expert fees and disbursements correctly, responding to Points of Dispute and negotiating the amount recoverable.

For paying parties, we can review the expert evidence, invoices, rates, time claimed and agency charges to identify areas where the amount sought may be challenged.

This can be particularly important in clinical negligence and serious personal injury claims, where expert costs can form a substantial proportion of the overall Bill.

Expert fees can be recoverable as part of a successful party’s legal costs, but recovery is not automatic. The necessity of the evidence, reasonableness of the amount, costs budgeting and any additional agency fees can all affect the amount ultimately recovered.

Where significant expert fees are involved, considering those issues before detailed assessment can help both parties reach a more realistic view of the recoverable costs.

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