Expert witnesses in personal injury work are not willing to work with litigants in person if the government’s plans to increase the small claims limit for personal injury (PI) cases are passed into law, new research has revealed.
It also found that 38% of experts operating in PI said they have been affected by a law firm or other instructing party going into administration.
The annual Bond Solon survey – which received 801 responses – said 76% of medical experts would not accept instructions from a litigant in person, compared to 46% of non-medical experts.
If the small claims limit goes up to £5,000 for road traffic cases and £2,000 for employer’s and public liability claims, it is expected that far more cases will be pursued by litigants in person.
Indeed, Lord Chancellor David Lidington said last month that whiplash cases were “not cases where it ought normally to be necessary to have legal representation”.
The survey said: “Expert witnesses are more and more reluctant to accept cases from litigants in person partly due to poor instructions from litigants in person and low fees…
“The small claims track regularly sees claims by litigants in person where the case might need to be supported by an expert’s report.”
Bond Solon said the number of PI expert affected by instructing parties going into administration reflected the “challenging time” for the legal market.
The survey said: “Competition between law firms is high. Law firm mergers are now commonplace placing great pressure on smaller firms with some of them going into administration. Clients are also demanding greater value for less money.
“In addition to this, alternative business structures have impacted the legal market allowing non-lawyers to own and invest in law firms. ‘Law tech’ start-ups using technology to streamline routine aspects of legal work are also threatening the business models of established law firms.
“Finally, cuts to legal aid and other funding changes have led lawyers to squeeze their fees.
“These pressures are not likely to reduce. More law firms, currently struggling with debts and unbilled work, may go into administration, so before accepting work, experts should conduct some due diligence.”
Other results included over a third of experts who could work in legal aid cases saying they would refuse to do so, while 69% said they would not continue working in legal aid cases if expert witness fees were further reduced.
Nearly half (46%) of the experts surveyed said they have come across an expert that they consider to be a ‘hired gun’, despite the expert’s express duty to the court rather than its instructing party.
Some 30% said that in the past year they have been asked or felt pressurised to change their report by an instructing party, in a way that damages their impartiality.
“Solicitors need to understand the role of experts and should not consider them as an adversarial tool,” the survey said. “Judges need also to keep a careful eye out for bias.”
Half of experts said they have felt stressed due to their activity as an expert witness.
“Since the Jackson reforms to the Civil Procedure Rules in April 2013, experts have had to comply with court timetables and tighter deadlines for reports. Changes in costs budgeting, proportionality and funding have also put a strain on expert witness work.
“The respondents have mentioned the difficulty of balancing expert witness work with other work/family commitments as the main reason for experiencing stress. Another key reason is respecting the short deadlines.”