The experts are restless

Mark Solon finds rumblings of Jackson discontent one year on – around fees, timetables, the amount of work and access to justice.

Lord Justice Jackson’s reforms to the Civil Procedure Rules were introduced in April 2013. Their aim was to streamline civil litigation, increase access to justice, cut costs, speed up the process and focus on key issues at the outset of any matter. Minds were concentrated by Mitchell v News Group Newspapers Ltd last November, when the Court of Appeal restricted the solicitors’ costs budget of more than £500,000 to court fees of £2,000 because the firm was late filing its budget (see Counsel March 2014 p 21). In other cases, “disproportionate and unreasonable” budgets were not approved, a direct result of the Jackson reforms.


As the first anniversary approached, we asked civil expert witnesses about their experience so far. In two surveys, run in November 2013 and February this year, experts were asked about the impact of the Jackson reforms; whether they had any experience of the courts being tough under the new regime; and for their views on hot-tubbing. There were 165 respondents in the November quantitative survey; and 65 experts emailed their comments for a more qualitative look at the subject in February.

Main findings

Taken from the November 2013 survey

Access to justice: Although the point of the Jackson reforms is to increase access to justice by streamlining litigation and cutting costs, about two-thirds of respondents (67%) felt that this would not work in practice – a dispiriting response in the light of the cuts to legal aid.

Cutting costs: Only a minority of respondents (38%) believed that the Jackson reforms would attain their goal of cutting costs. They were balanced by the don’t-knows (35%), with 1% not answering. Twelve per cent thought that there would be no change and 14% thought that costs would rise.

Budgeting: Budgeting at the outset of a case is a key cost-cutting measure, but only 31% of respondents thought this would succeed in practice. Twenty-one per cent thought that budgeting would increase costs and maybe this is not just wishful thinking: a requirement to itemise experts’ projected expenditure, in order to submit an accurate estimate, might actually lead to more elements of work being taken into account. There is also a need for the legal team to isolate the main issues at the beginning of a case, and that process in itself may incur costs if experts are required to help.

Litigants in person (LIPs): Cuts to legal aid are expected to increase the number of LIPs. However, respondents reported that their contact with LIPs had been largely negative. Complaints included not being paid by LIPs (although, to be fair, solicitors’ firms also earn criticism in this area). The most commonly repeated word was “nightmare”.

No surge in instructions: More than half the respondents (54%) said that they had received either fewer or the same number of instructions during the 12 months leading up to November 2013. In Bond Solon’s 2012 survey, however, more than half (55%) reported an increase. It is too early to tell whether the Jackson reforms are among the causes of this decrease in work.

Single joint experts: Although the Jackson reforms encourage the use of single joint experts, 86% of respondents reported that the demands for such work had stayed the same or fallen in the 12 months up to November 2013.

Hourly rates broadly static: The average hourly rate for report writing was £174 for the 12 months up to November 2013, compared with £162 for the previous year.

Qualitative perspective

Quotations (occasionally abbreviated) from the February survey

Reduction in work

“The reforms have led to an approximate 60% reduction in my psychiatric medico-legal workload… I suspect I no longer have the option of going part time and doing more medico-legal work.” “The demand for my expert witness work has fallen off the cliff this last year. I suspect it is because a lot of disease claims are being held up whilst the parties see how the Jackson reforms pan out.”

Hassle factor

“I am now seriously considering withdrawing from civil work entirely as it is becoming far too much hassle to bother with.”  “For experts, the reforms have bureaucratised matters impressively – average admin time per instruction has trebled.”

Fees

“I have been asked to give a precise figure of costs prior to producing a report without any leeway. Cases obviously can become more complex than expected but we as experts are expected to negate this somehow. Also, solicitors often state that I may have to pay back some of my fees if the court deems it excessive.”

“Fees paid to GPs for medical reports have dropped from £150 a few years ago, to £65 one to two years ago, to now £50 per report. Some agencies will only pay once a case has settled.”

“The courts are sometimes giving us the run-around, e.g. one court refusing to pay for 10 hours of time at court over two days as the principal witness failed to appear, and so the court did not sit. We were there, waiting. Coroners’ courts are a disaster for experts with travel and mileage refused and hours paid per day limited to two and half. We shall simply avoid attending them.”

Pressures of timetabling

“Cases are poorly defended or argued because of time limits as well as cost limits, medical experts are moving out of my area back into private or NHS work because of draconian time limits and fears of litigation against them if not complied with.”

“I have observed a substantial increase in requests from solicitors to compile a preliminary short form report (as opposed to a report which includes a full chronology and detailed facts section).”

“The court can’t have it both ways. They want to speed up the time, but aren’t giving me the information initially to be able to give them an accurate estimate.”

“One effect of Jackson has been solicitors expecting us to omit or be vague regarding the dates of reports and documents we have relied upon. This is because other experts’ reports are being finalised very close to the court imposed deadlines. Not being transparent about information we have relied on in our reports is in conflict to our obligations under Part 35 of the CPR.”

Not all bad news

“The main change to our expert work is the amount of detail we have to provide prior to undertaking the majority of cases. This is no bad thing as we are able to give costs for all stages of the process; this is then accepted before we agree to take on the case.” “Predictions that medical experts will have to cut their fees or return to their day jobs have not proved true, for me at least. The volume of my work has continued to grow at a steady pace.

Solicitors are more focused than ever on court deadlines and I suspect that experts who can meet these requests will be used more and more.”

Hot tubbing

“It was very successful. The main problem was over the unsuitability of the witness box for holding two people and the bundles. In the event, we used the press box but it was awkward for the stenographer. It certainly cut down on time but I felt sorry for counsel who were almost cut out of the process as the judge took total charge. It must have helped the judge no end. I would certainly welcome hot-tubbing again, particularly if we can get the court room layout sorted out.”

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Mark Solon

Mark is managing director of Bond Solon, the largest provider of law-related training to non-lawyers in the UK. A leading expert on expert witnesses, investigatory practice and witness familiarisation, he is a solicitor and a qualified attorney at law in California.