Expert Fees in Inter-Partes and Legal Aid Cases
What is Reasonable to Pay for Expert Assistance?
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Requirement to Incur Expert Fees
Expert fees arise when an expert’s involvement is required in a case, and for which a receiving party is entitled to recover fees for the same. There can be a number of different experts whose involvement is based on the facts of the case. The involvement can vary from a report, to a site inspection, settling a joint statement and even attending Trial as expert witnesses.
It should be noted that experts act as independent third parties to the claim. Their overriding duty is to the Court and not the party who is instructing them, as per CPR 35.3.
(1) It is the duty of experts to help the Court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
The expert witness fees which can be incurred and the rules governing the fees will vary based on whether the case is funded privately or by way of the Legal Aid Agency.
Privately Funded Cases
The amount you can recover for expert involvement will vary based on whether your costs are being assessed on a standard, indemnity or fixed basis.
There are different ways of regulating expert fees and the amounts which can be charged by experts.
Firstly, there are expert fees which may be incurred under a case which falls under the fixed costs Protocol for Road Traffic Accidents. Paragraph 7.44A of the Road Traffic Accident Protocol provides limits on the maximum rates for different types of experts. CPR 45.19 (2A) also lists the maximum rates for different types of expert witness involvement for Road Traffic Accident Claims and states:
“(2A) In a soft tissue injury claim to which the RTA Protocol applies, the only sums (exclusive of VAT) that are recoverable in respect of the cost of obtaining a fixed cost medical report or medical records are as follows—
(a) obtaining the first report from an accredited medical expert selected via the MedCo Portal: £180;
(b) obtaining a further report where justified from an expert from one of the following disciplines—
(i) Consultant Orthopaedic Surgeon (inclusive of a review of medical records where applicable): £420;
(ii) Consultant in Accident and Emergency Medicine: £360;
(iii) General Practitioner registered with the General Medical Council: £180; or
(iv) Physiotherapist registered with the Health and Care Professions Council: £180;”
When arrangements for specific expert reports are being made in relation to medical experts, it is important to check if they are registered with the relevant body. Medical experts must be registered on Medco to provide medical reports for personal injury claims.
Where a case does not fall under the fixed costs regime, there is no limit set on the fees which can be incurred. However, like the costs of the work undertaken, the expert fees should also be justified as reasonable. These fees can be disputed by a paying party, and the reasonableness of the expert fees incurred will be dealt with at detailed assessment should they not be agreed between the parties. Reference points such as the MRO agreement (applicable to cases up to £15,000 in value) are of some use, but rates were last set in 2012, and thus non-fixed expert fees are generally governed by competition in the market.
Legal Aid Agency Cases
Cases which are funded by the Legal Aid Agency (LAA) will have expert rates set. The rates set by the LAA are applicable to all civil, family and crime cases, where the case was started on or after 2nd December 2013. The LAA will not pay rates which exceed those listed in its regulations unless they have granted prior authority to the higher fee being paid. This is usually done in exceptional circumstances only. These exceptional circumstances include:
a) the complexity of the material is such that an expert with a high level of seniority is required; or
b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence. (Guidance on the Remuneration of Expert Witness para.2.2)
If a fee is incurred, which exceeds the limits set by the LAA without prior authority, the LAA will disallow this fee.
The LAA have attempted to include provisions for specific types of expert fees which may be incurred in publicly funded type matters. The regulations include numerous different types of expert involvement from medical experts in civil claims to experts required in family cases such as risk assessment, drug and alcohol testing, and DNA testing experts as well as independent Social Workers.
Within the LAA Regulations, there are also expert witness standards in family matters which are set.
For detailed information regarding expert fees in Legal Aid cases in England and Wales, see the expert fees guidance here.
How Can ARC Costs Assist?
ARC Costs are specialist Costs Draftsmen and Costs Lawyers who can assist in your recovery of costs and disbursements (including expert fees). We can assist with the recovery of the expert fees and other disbursements you may have incurred. We will ensure all your disbursements are included in our Bill of Costs and provide explanations on why these experts were required to justify the fees incurred. It is imperative that maximum recovery is achieved on expert fees, as otherwise this erodes the profitability of the file, and this is of particular importance in fixed costs matters where there is limited scope already to run a file profitably.
Alternatively, depending on which side your interest falls on, as independent costs experts, we can also help in disputing the costs raised by the receiving party and the extent of the expert fees incurred should you feel that they are excessive.
We can assist with advising on the recovery of costs and disbursements in all matters, and hold vast experience in preparing Bills of Costs, Schedule of Costs and Precedent Hs. We can negotiate costs on your behalf and assist and represent at Detailed Assessment.
Should you require our assistance or have a query you would like to discuss, please complete our online form and a costs expert will contact you to discuss further. Alternatively, please contact us on 01204 397302 or email us on firstname.lastname@example.org.
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