From 1 April 2013, Part 35.4 of the (CPR) requires that an estimate of costs in respect of expert evidence is provided in multi-track cases (eg cases with a value of £25,000 and above).

Further amendments clarify the issues that any expert witness will be asked to address and allow the court to specify issues the expert evidence should address.

The effect of this change is that Experts will have to be very careful in discussing with their instructing solicitors before accepting an appointment exactly what they are to do.

CPR 35.4 now states the following:

35.4 Court’s power to restrict expert evidence

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.

(3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.

(Paragraph 7 of Practice Direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

We regularly conduct a survey of Expert Witness Fees.

The last Survey we conducted was in 2020 and the next Survey will be launched in September 2023. We would encourage as many experts as possible to complete the new survey – the more in formation we receive the better the results that we are able to produce.

What we said in 2013

Since the 2010 Fees Survey was published we have received the Jones v Kaney judgement, Sir Rupert Jackson’s report on costs a number of revisions to procedure rules and the economy has continued to grind along at an almost imperceptible pace. How then has this been reflected in the world of the Expert Witness?

A few ‘top-level’ figures are shown below which seem to indicate that, broadly, fee levels have increased in line with inflation. Whether this trend continues or fee levels become capped remains to be seen

2013 Survey Results

The headline charging rates for Civil Cases. All figures shown are in £.

Whiplash Reforms

From 1st October 2014 new Government rules regulate the fees that can be paid in Whiplash claims under the existing RTA (Road Traffic Accident) protocol. These have an effect on the amount of fees that can be charged by experts involved in such cases.

The changes aim to:

• control the use of medical reports
• ensure that in most cases only one medical report is obtained
• ensure the expert is independent of any medical treatment; and
• limit offers until after a fixed cost medical report has been obtained and disclosed

Under the changes, claims firms have a duty to make sure the claims they are submitting have a realistic chance of success, as well as ensuring full evidence is provided to back up any allegations. Firms will also have to carry out thorough audits of how data they use has been gathered, so they can no longer turn a blind eye to whether leads have been found by illegal marketing texts and calls.

A result of this is that neither party may have a direct or indirect financial interest in an intermediary making the medical report. In this context parties include the claimant’s representative and the insurer who will thus be barred from owning or having any interest in a medical reporting agency. This is achieved by new Paragraph 1.1(10A)(b) RTA Protocol.

Pre-Medical Offers

Defendant’s pre-medical offers have been banned until a claimant representative obtains an initial report outside the fixed medical report fee scheme. This is achieved by new Paragraph 7.44A of the Road Traffic Accident Protocol.

Fixed fees for medical reports and records

The fixed fees (excluding VAT) recoverable for initial whiplash reports are:

Experts must be registered:

A new independent online system (Medco) is being created to allocate medical experts to ensure proper independence exists between the expert and the commisioning party. This hub is being funded by the Association of British Insurers (ABI). As part of this process there will be mandatory accreditation by Medco which will include peer review with Experts failing to meet the standards facing sanctions such as removal of accreditation or limitations placed on their accreditation.

From 6 April 2015, medico-legal experts and MROs will need to be registered with MedCo in order to provide initial medico-legal reports for RTA soft tissue injury claims. Experts interested in registering should go to the MedCo website to register their interest.

Notes:

1. Save in exceptional circumstances, no fee may be allowed for the cost of obtaining a report from a medical expert who—
   1. has provided treatment to the claimant;
   2. is associated with any person who has provided treatment; or
   3. proposes or recommends that they or an associate provide treatment.
2. These figures are set out in the new CPR 45.19(2A). The cost of obtaining a further report from an expert not listed above is not fixed but any cost incurred must be justified.
3. A first medical report in a soft tissue claim must be obtained within this scheme or the claimant will not be able to recover the cost of that report (CPR 45.19(2B) and CPR 45.29(2B)).
4. CPR 36 has been amended to provide that as long as a claimant follows the new scheme then a defendant’s pre-medical report offer shall be of no effect under Part 36.
5. If a claimant subsequently obtains a first medical report outside the scheme then the defendant’s pre-medical report offer retrospectively becomes a valid Part 36 offer with the usual consequences.
6. If a defendant makes a pre-medical report offer and the claimant follows the scheme then the claimant may accept that offer at any time unless it is withdrawn. Upon acceptance of the offer at any time the claimant will not be liable for the defendant’s post offer costs from 21 days after the offer. Furthermore the claimant will be entitled to recover all of its own costs from the defendant up to the date of acceptance, however long that is after the offer was made.