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22

www.solicitorsjournal.com

I

n response to a‘widespread feeling

[among the judiciary] of not being valued

or appreciated for their work’, the Ministry

of Justice (MoJ) has awarded top judges a pay

rise that is six times the rate of inflation because

‘the evidence available suggests that there is an

emerging problemwith recruitment and

retention’.

So what, we must ask, is the MoJ doing about

the growing concerns regarding the availability

of suitably qualified and experienced expert

witnesses, who, like High Court judges, need to

develop their expertise over many years?

I suggest that the MoJ needs to urgently

consider four keys issues if we are to avoid the

serious problems that will occur if our well-paid

judges are no longer able to rely on suitably

qualified and experienced experts to advise them

on matters that neither they nor the jury can hope

to understand without our input.

Fees for reports

In 2003, the ‘Guidance for taxing/determining

officers’set out a range of fees for the

remuneration of expert witnesses. It included

the immortal words: ‘It is intended that the

information will be revised annually.’

‘Revised annually’? I doubt that it was even

reviewed annually, and it most certainly wasn’t

revised in any upward direction over the

following seven or eight years.

Then, in March 2010, Lord Bach, then

parliamentary under-secretary at the MoJ,

announced a ‘central working group… to help

[the] MoJ gain a greater understanding of the

range of work which experts do and how this is

currently remunerated’, adding that ‘additional

analysis of this complex area is needed to ensure

that any future fee structures are both sustainable

and fair’– parliamentary speak for ‘expect cuts’.

Sure enough, the following year we saw the first

fully detailed schedule of experts’fees, which for

most experts were about 10 per cent less than the

rates from 2003. Further reductions of 20 per cent

were announced in 2013.

So, from a starting point in 2003 we have two

numbers: inflation has added about 50 per cent to

the cost of living and fee rates have been cut by

about 28 per cent.

This means fee rates that should have risen from,

say, £100 to £150 have actually been cut to £72, an

effective reduction of over 50 per cent.‘Fair’?

If top judges feel undervalued, just think how

experts feel.

Allowances for attending court

Allowances for attending court haven’t fared

quite so badly. They were set in 2003 and haven’t

been changed at all in the last 12 years, so they

have only gone down by 33 per cent in real terms.

But the headline rate is not the only issue.

The‘guidance’gives a very wide margin for

discretion to the local court officials, so for experts

like surveyors, accountants, architects, and similar

professionals the guidance ranges from £226 to

£490 for a full day at court. Can the MoJ seriously

expect a qualified and experienced professional

to attend court for several days for just £226 a day?

When I prepare an expert report for a legally

aided criminal case, prior authority gives me

certainty over my fee rate for the report, but I also

take on an obligation to attend court if required,

with no guarantee as to howmuch the local court

officials will agree to pay me. This is just not right.

And then, just to complete the injustice, there

are the issues of travel time and cancellations.

As an expert in a specialist area, I travel all over

the UK. If I’m to be in court in Newcastle or Belfast

for 10am, I have no option but to travel the day

before. There is no additional allowance for this.

FEATURE

FEES

The MoJ must make urgent changes to fee rates and case management if it expects to rely

on qualified and experienced experts to advise the courts, argues

Richard Emery

Expert witnesses are not

getting a fair deal from

legal aid

Richard Emery has served as an

expert witness in cases relating

to retail theft, credit/debit card

fraud, electronic point of sale

(EPoS) systems, and warehouse

management since 1994

www.4keys.co.uk

Expert Witness Supplement Spring 2016

SJ 160/6