A number of experts have been in touch about whether they can accept instructions on the basis of mirroring the solicitors’ ‘no win – no fee’ agreement in personal injury compensation claims. This is a paragraph from the solicitors’ letter:
“Our client’s [sic] claims are funded by way of no win no fee agreements so we would be looking for an expert to agree to mirror this payment agreement. The vast majority of cases do settle but we appreciate that any invoices which may need to be waivered may be a cause for concern. The way in which our other experts work is that they agree to charge slightly more on their invoices to balance out any later need to write off any invoices. As I say, this is not a common position but it is something I feel important to be up front about.”
In Factortame, R (on the application of) v Secretary of State for Transport [2002] EWCA Civ 932 the court said:
“It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the Judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.”
Lord Phillips MR (as he then was) stated: -
“To give evidence on a contingency fee basis gives an expert, who would otherwise be independent, a significant financial interest in the outcome of the case. As a general proposition, such an interest is highly undesirable. In many cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case. In such a situation the threat to his objectivity posed by a contingency fee agreement may carry greater dangers to the administration of justice than would the interest of an advocate or solicitor acting under a similar agreement. Accordingly, we consider that it will be in a very rare case indeed that the Court will be prepared to consent to an expert being instructed under a contingency fee agreement.”
The Guidance for the Instruction of Experts to Give Evidence in Civil Claims 2014 states (para. 88):
Payment of experts’ fees contingent upon the nature of the expert evidence or upon the outcome of the case is strongly discouraged. In ex parte Factortame (no8) [2003] QB 381 at [73], the court said ‘we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement’.
The issue arose again in Gardiner & Theobald LLP v Jackson (VO) (RATING - procedure) [2018] UKUT 253 (LC) where Sir David Holgate, President of the Upper Tribunal (Lands Chamber) sitting with Mr A J Trott FRICS. posed the question: To what extent may success-related fees be compatible with an expert’s obligation to the Tribunal to act independently? The judgment includes a lengthy discussion of the arguments and ends that discussion:
“However, one thing is certainly clear. Whatever approach this Tribunal decides to adopt on the issues raised by Factortame, it remains wholly unacceptable for an expert witness, or the practice for which he or she works, to enter into a conditional fee arrangement, without that fact being declared (and in sufficient detail) to the Tribunal and any other party to the proceedings from the very outset of their involvement in the case. The Tribunal will treat such a failure as a serious matter.”
So, you can accept instructions on such a basis – BUT it is highly undesirable, it is discouraged, it requires the consent of the court, your independence and objectivity will probably be challenged (and perhaps in other cases where you are not working on a contingency basis), and you may not want to risk relying on your instructing solicitors, in their words, being ‘upfront’ because the obligation is on you to inform the court or tribunal of the arrangement and the judgment in Gardiner & Theobald LLP identifies failure to do so as a matter which the court could refer to a professional regulator, i.e. the GMC.
It must follow that your expert’s declaration will require amendment. It is likely to include a statement to the effect:
I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the opinion I have given or the outcome of the case.
This will need to be amended along these lines:
I have entered into an arrangement where the payment of my fees is dependent on the outcome of the case in that I have agreed to charge slightly more to balance out any later need to waive my fee in the event of my instructing party’s case being unsuccessful.
This statement in itself may give rise to cross-examination about exactly what is meant by ‘slightly more’ and how mathematically the ‘balancing’ works in practice.
Cross-examination might also address the issue of dependence and independence.
Counsel: Do you agree that expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation?
Expert: Yes
Counsel: Doctor, in order to receive your fee, are you dependent on your instructing party winning this case?
Expert: Yes
Counsel: If you are dependent (emphasis) on your instructing party winning this case, do you agree that it calls into question whether your evidence is the in (emphasis followed by pause) dependent product of the expert uninfluenced as to form or content by the exigencies of litigation?
Given how very rare it would seem to be that the Court will be prepared to consent to an expert being instructed under a contingency fee agreement and assuming that these solicitors have more than one client whose case calls for such an arrangement I would be interested to know the exceptional nature of these cases. Given that the solicitors have other experts who work on this basis, if you are one of them, readers will be interested to hear how you ensure that the court is sufficiently aware that it is the basis of your agreement and whether, and if so in what way, the matter has been raised in cross-examination.
This item appeared in the February edition of Expert Healthcare Witness Matters, a monthly email newsletter written by Professor Keith Rix, Hon FEWI, a retired forensic psychiatrist, and distributed by the Multi-source Assessment of Expert Practice (MAEP) team at the Royal College of Psychiatrists. The newsletter is free to all healthcare experts, not just psychiatrists, and also to solicitors, barristers and other professionals interested in expert witness matters. Go to the MAEP pages at https://www.rcpsych.ac.uk/improving-care/ccqi/multi-source-feedback/maep/maep-newsletter-resources These pages also explain MAEP which experts can use to obtain feedback to inform their professional development and to fulfil any requirements as to audit or appraisal.