Bond Solon Training have published the results of an anonymous survey they had made of 160 Expert Witness respondents covering a wide range of disciplines, with Medical Experts comprising just over 56%, Surveyors 10% and Accountants 8.4%. This was the second year the survey had been carried out, although in 2002 only 133 respondents had participated.
It showed, inter alia, that:
? the hourly rate for expert witnesses had not particularly changed, with the range ?100 - ?149 remaining the highest percentage (30%); the biggest change was an increase from 4% to 13% in the ?200 - ?249 range, whilst those charging more than ?300 fell slightly from 2% to 1%;
? the hourly rate charged by those attending court (no differentiation between civil and criminal) has increased into the ranges between ?401 - ?1600 and fallen (from 2% to 1%) above ?1600;
? respondents generally were receiving similar numbers of instructions over the 2 years and were optimistic over future work;
? over 90% believed that expert witnesses need training in expert witness skills, and 55% believe it should be mandatory;
? the relationship between them and their instructing solicitors could be better, with instructions arriving ?just in time? in 43% of cases, although when they do arrive they are ?good? in 41% of cases and ?adequate? in 43%. However, payment of experts? fees is ?late? in 61% of cases and ?very late? in 20%;
? 59% of experts know of firms of solicitors with whom they ?would never work again? (up 6% from last year);
Perhaps the most significant finding, however, was that only 39% of respondents (29% the previous year) thought that lawyers ?encourage their expert to be ?a truly independent witness?? whereas 57% (58%) did not. Thus it seemed that the experts themselves must insist upon independence. (Note that the expert when acting as such must, in any report which forms part of the proceedings, make an express statement that he understands his duty to the court ? CPR Practice Direction 1.2.(7).)
This is a significant statistic (if, indeed, it is representative of expert witnesses as a whole). A solicitor is an Officer of the Court and, in cases where there is a conflict between his duty to the court and his duty to his client, his duty to his client must be secondary to his duty to the court.
But in most of the reported cases of criticism by the court where the judge considers that the expert evidence produced before him fails to meet the required standards of independence, the criticism is of the expert, not those instructing him.
Today, the Lawyer published a report of research carried out by Sweet & Maxwell revealing that 85% of expert witnesses are paid less than ?200 per hour and 32% charge less than ?99 per hour. (Presumably these figures refer to hours spent by experts in preparing reports and attending meetings. In our experience, once an expert has to appear in court the fees then payable are higher, although they must encompass ?dead? waiting time.)
Thus there does not seem to have been any improvement over the last twelve months.
The Lawyer?s report goes on to say that the author of the research warns that ?top professionals could be deterred from providing expert opinion as the level of remuneration did not reflect the high risk of criticism inherent in the industry.?
This finding is not new. When the Auld Report was published in September, 2001, its author had this to say on the subject of publicly funded fees for Expert Witnesses, at paragraph 150:
?The second matter that has been the subject of considerable complaint by defence solicitors and experts is the low level of publicly funded experts? fees. I have had a look at the current scales, and, without going into detail on the figures, they are meagre for professional men in any discipline. I am not surprised that solicitors complain that they have often had difficulty in finding experts of good calibre who are prepared to accept instructions for such poor return. The best expert witness in most cases is likely to be the one who practises, as well as giving expert evidence, in his discipline, rather than the ?professional? expert witness ? one who does little else. Justice is best served by attracting persons of a high level of competence and experience to this work. If we expect them to acknowledge an overriding duty to the court and to develop and maintain high standards of accreditation, they should be properly paid for the job. I hope that the Legal Services Commission will take an early opportunity to review and raise appropriately the levels of their publicly funded remuneration.?
The recent highly publicised criticism of experts in the Sally Clark and Angela Canning cases has certainly deterred some experts from continuing to practise as such.
When one further takes into account the very real difficulties expert witnesses experience in being paid reasonably in time, the problem seems to be growing rather than diminishing.
If the Bond Solon findings still appertain, and there seems to be no reason to suspect they do not, further disincentives arise from the cost of training and the attitude of many instructing solicitors.
Add all of these disadvantages together, and particularly emphasise the comparatively low level of fees and the difficulty in many cases of being paid within a reasonable time, and it may seem surprising that so many people are wiling to put themselves forward as expert witnesses at all.