Remuneration is more uncertain post-Jackson, now that the court bears in mind its amended overriding objective to deal with cases at proportionate cost. Experts, who may charge hourly or daily rates, must now give detailed estimates of costs, including, for example, background reading for report-writing, travel and meetings, which can be unpredictable at best. The court now has the ability to reduce fees if they are believed to be disproportionate, which may leave solicitors or expert witness agencies offering experts a lower fee, despite what might have been agreed in the contract. It is up to the expert to consider fixed or capped fees, to accept a lower fee for the sake of the relationship, or indeed to sue for the agreed amount.
Timing is key: as a rule, the solicitor (or agency) will not want to pay the expert until paid by the client, whatever terms have been agreed. Many law firms who are instructed by PI insurers will have agreed to invoice only every two or three months, delaying payment still further. Slow payment by solicitors is a recurring theme whenever experts get together.
There is no question of an expert acting on a no-win no-fee basis. Mr Rex said: “The reason is obvious, since any expert will struggle in court to maintain that his advice is completely independent when all parties know that he will not be paid if his client loses. However, there is nothing to prevent the instructing lawyer meeting the expert’s fees under a contingency agreement and this is a situation we come across increasingly.”
In addition to fees, another matter concentrating the minds of expert witnesses is the judgment in Jones v Kaney, a case heard in the Supreme Court in 2011. Where experts had previously enjoyed immunity when giving evidence in court and at every other stage in the process, such as report-writing and answering questions, the judgment in this case removed experts’ immunity from civil action for professional negligence and breach of contract.
As a result of this judgment, experts should have appropriate professional indemnity insurance (which gives comfort to instructing solicitors that, in the event of a claim, experts will be able to pay damages).
What are disputes likely to involve? Mr Rex said: “Poor investment performance is not automatically a basis for a claim.” He lists the common areas for dispute: “There might be a mismatch to the investor’s requirements, on the assertion that the investor’s risk appetite was misunderstood, incorrectly recorded or ignored. The investment adviser or manager might have mis-classified or misunderstood the nature of the investment, which might in turn imply failures in its product approval process and/or its underlying due diligence or analysis.