The post-Jackson climate for expert witnesses is “leaner and meaner”, according to a leading observer of their work.
Mark Solon, managing director of expert witness training organisation Bond Solon Training, said the pressure was coming both from the courts and from instructing solicitors.
“In some cases the courts are making more vigorous use of powers which they have already had – for example, they are taking a tougher attitude to timetables,” he said.
“In a recent case where the expert excused himself from the case close to the trial, the court of first instance allowed for a fresh expert but the Court of Appeal overturned that as it was not in the original timetable, and refused to allow another expert to be appointed.”
If an expert’s report is handed in late, there is a risk that it won’t be allowed in evidence, he emphasised.
As with other areas of the costs world, Mr Solon said the lack of guidance on proportionality is a problem. “Does it, for example, mean less than half the amount of money being claimed? And how does proportionality work when there are subjective matters such as the cost of reputational damage?” he asked.
The courts are also tougher on the number of experts used and using the costs budgeting process to control it.
Mr Solon said: “If the actual costs exceed the estimate, the solicitors may apply to the court for a variation, but the courts make clear that you can’t be granted a variation just because you made the wrong call. Solicitors are likely to see if they can pare costs by doing the work of the expert themselves.
“The courts may look to the example of employment tribunals, where experts are rarely used: where appropriate, lawyers make submissions based on academic research.”
He added that experts need to understand budgeting in order to estimate fees accurately at the beginning, going into considerable written detail about each stage of the work – such as report writing, attending meetings and hearings – so that the judge can see the expert’s value.
“The experts who demonstrate their worth and keep within budget are the ones who will get more work,” he predicted.
“The days of deferred payments to experts should be coming to an end. Courts aim to deal with bills within six weeks, which is better all round for cash flow. To protect themselves from the risk of law firms becoming insolvent, experts should get the money upfront and be prepared to reflect that in the fee.”