The Following Guidelines on Contingency Fees were issued by The Academy of Experts’ Judicial Committee in June 1995 with further Guidance Issued in June 1998
It is clearly established law that Expert Witnesses in adversarial proceedings must give the court, or tribunal, their independent, objective and unbiased opinions on the aspects of the case that come within their expertise. The Expert Witness is not an advocate employed on behalf of a party. It has come to the Judicial Committee’s attention that there is increasing pressure for Expert Witnesses involved in litigation to be paid on a contingency fee basis. This causes the Judicial Committee concern.
An Expert Witness’ written report and oral evidence must genuinely reflect his independent opinion. An Expert must not mislead a court or tribunal by placing undue emphasis on points that favour his client, whilst omitting or understating legitimate points that he believes go against his client.
The Judicial Committee considers that any form of contingency fee arrangement for Expert Witnesses is incompatible with the Experts’ duty of independence and impartiality. A contingency fee means that the Expert Witness has a direct financial interest in the outcome of the case. Such a direct financial interest must increase the pressures on Expert Witnesses to give evidence that favours their client. Even if an Expert Witness resists this pressure, his independence may still be compromised. An Expert Witness must not only be independent, but must be seen to be independent.
The Judicial Committee considers that a contingency fee arrangement, in this context, is any arrangement that leads to the Expert Witness having a financial interest in the outcome of the particular case. Examples of such an agreement include:
- an agreement that the Expert Witness will be paid a percentage of any damages recovered by his client;
- an agreement that the Expert Witness will be paid a basic fee together with a bonus if his client wins; and
- an agreement that an Expert Witness will be paid a percentage of his fee in advance, but will not bill the client for the rest of the fee if the client loses.
The Judicial Committee also understands that solicitors sometimes place undue pressure on Expert Witnesses. For example, there are instances when a solicitor has indicated to an Expert that if he agrees to the solicitor’s terms, he will be placed on the firm’s approved list of Experts. The clear implication being that the Expert will then receive further referral work from the solicitor. The Judicial Committee considers that this practice is objectionable and does compromise the Expert’s independence and impartiality. If an Expert feels that a solicitor has attempted to exert improper pressure on him or her, the Expert should report the matter to the Academy.
The Judicial Committee, under the chairmanship of Lord Saville of Newdigate, at its June 1998 meeting reviewed contingency fees as they related to Experts. They unhesitatingly reaffirmed their earlier Guidelines. These reinforce the Code of Practice and make it clear that it is improper for Experts to work on any form of contingent fee agreement for contentious work.
They also considered whether the prohibition applied to expert work relating solely to quantum. They concluded that the Guidelines equally applied to Experts who undertook liability or quantum work or both.
The Committee welcomed both the addition to the ‘Expert’s Declaration’ of the statement showing that the expert was not working on a contingent fee basis and its restatement in open court.
The Original Committee was composed of:
Chairman: The Rt Hon The Lord Slynn of Hadley PC
- The Rt Hon Lord Justice Neill
- The Rt Hon Lord Justice Saville,
- The Rt Hon Lord Justice MacDermott,
- The Hon Lord Johnson,
- The Hon Mr Justice Garland,
- His Honour Judge Bowsher QC