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23

www.solicitorsjournal.com

FEATURE

FEES

There is a dearth of

information about

the true value of

experts

In one case I travelled up to Newcastle on a

Sunday and arrived in court at 9.30am on Monday,

only to be told later that morning that the case,

for which I had allocated three days in my diary,

wouldn’t be going ahead. I was offered an

allowance for a half-day attendance, and nothing

for travelling up the day before, travelling back

that afternoon, or the two days that would have

followed.

‘Sustainable and fair’? I think not.

Expenses

There is very little that one can say about expense

allowances, except to point out that the amount

that can be claimed for an overnight hotel was

fixed over ten years ago at £55.25 (for all except

the top six cities in England). A quick internet

search reveals that a one-night stay in Leicester

Central Travelodge next Wednesday is currently

priced at £75. Who is going to cover the extra £20?

Getting paid

Perhaps I’ve been fortunate. There have been only

a few cases where I’ve had to chase and chase and

threaten court action, but I’ve always been paid in

the end, until now.

The latest round of cuts in legal aid funding have

combined with the‘re-structuring’of criminal

defence law firms, resulting (I understand) in an

increasing number of law firms going into

liquidation. Where does this leave the expert?

Despite having prior authority (and a county

court judgment), I’m now facing non-payment of

an invoice for more than £5,000 because the

solicitors have gone into liquidation. I’m told

that I’m just another unsecured creditor who is

unlikely to get anything after the banks and the

Inland Revenue have had first pickings. That is,

unless someone can tell me, the liquidator, or the

Legal Aid Agency (LAA) any differently.

So, what can we all do to reduce costs?

We have to accept that the criminal justice system

is expensive to run. But access to justice is also a

vital part of our society, so we have to find ways

of delivering quality decisions at less cost. I offer

four thoughts.

Value of experts

When Lord Bach announced the central

working group on experts’work, he was actually

highlighting the dearth of information the LAA

(or the Legal Services Commission before it) has

about the true value of experts.

I get instructed by the defence team in a

criminal case. I write a report for which the LAA

pays me £2,500. The direct result of my report is

either the prosecution dropping the case or the

defendant pleading guilty, saving the cost of a

three to four-day trial. I think that this makes me

great value for money. But the simple truth is that

the LAA does not have any process for tracking

the outcome of the expert reports it funds.

Isn’t it time that judges were required to write

a short note to the LAA after every trial to say

whether or not the LAA-funded expert report

assisted in the case? At least it would be a starting

point for the MoJ to understand the contribution

that experts make.

Better case preparation

At a recent plea and case management hearing

(PCMH), soon to be replaced by plea and trial

preparation hearings (PTPHs) and further case

management hearings (FCMHs), the judge was

justifiably annoyed with the police and Crown

Prosecution Service (CPS) for serious failures in

case preparation.

The police claimed the CD I had been given

(through the defendant’s legal team) contained

everything I had requested, but it didn’t. The officer

was forced to admit that she had not actually

checked the contents of the disk, so it could have

contained anything. A wasted costs order against

the CPS may help the defence team, but it’s still

wasted costs coming out of the public purse.

Early assessment of evidence

In the course of investigating a case of alleged

retail fraud, I identified a serious flaw in the

electronic point of sale (EPoS) system that, in my

view, invalidated vital EPoS evidence. Rather than

waste LAA-funded time preparing a full report,

I wrote a letter to the instructing solicitor

explaining my findings.

This letter was forwarded to the CPS (with my

approval) but when asked about it at the next

PCMH the prosecuting barrister admitted to not

having read it. Having read it, following the PCMH,

the CPS decided to drop the charges. Why was the

letter not considered earlier?

Trial management

I recently attended a trial that was scheduled for

four days but took seven. Why? The answer was

simply poor management of the court’s time.

All parties were ready at 10am each day, but we

never started before 11am – and on some days it

was even later – because the judge was dealing

with other matters. The case needed only 20

hours of court time, but this ended up being

spread over seven days rather than four because

of the delayed starts each morning.

Surely there must be better way of managing

the court’s time?

SJ

SJ 160/6

Expert Witness Supplement Spring 2016