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welcome to this sponsored video about expert witness fees it gives me great pleasure to introduce you to Raja mallalieu who is very kind of speaking of the expert witness conference on the 9th of November this year Raja welcome and thanks so much for coming couldn't just give us a bit of background about your practice yes of course mark well firstly thank you for inviting me my practice really covers three main areas professional negligence clinical negligence and costs and they're all interlinked in some way and on the cost side in particular I do my work recovering cross for solicitors in India clinical negligence cases that sort of thing I'll also I deal with a lot of disputes between solicitors and clients and occasionally sisters and that experts are made to be instructed well let's move on to that exciting subject of expert witnesses let's start from the basics terms and conditions why are these important between me expert and Lee Sonesta well they're important really for two reasons and firstly to ensure that the expert gets paid at the end of the case to make sure that there's clarity as to the early rates that he's entitled to be paid cancellation fees turnaround of work all these matters that there's no dispute about that but the second which is perhaps equally important is to assist the solicitor in making sure that he can recover as much as possible of those experts fees from any other party that's liable to pay be that the legal services commission or the other party in contested litigation almost importance of the terms and conditions in terms of liability in contract now that we have gems and cainy well it's another aspect of the potential liability the expert potentially liable in negligence but also of course the terms of his agreement with his solicitor may well disclose the scope of the work he's expected to do the scope of his responsibilities and therefore may be directly relevant question the scope of his liability now in terms of the the level of fees that are charged at the end clearly time records are important can you explain what is the importance of time records for expert witnesses well yes well again there's really the dual aspect it is for example for those experts who work in cases which are publicly funded it is a requirement of the solicitors contract with the Legal Services Commission that he puts in his contract with you the expert and a requirement for you to keep proper time records so for example if you don't do that then there is a very high risk that the legal service commission will simply disallow some or all of those fees and these Lyster will then turn to the expert and say well you are in breach either of this Express term or even arguably an implied term and therefore I am NOT going to pay you from what I've not been able to recover and on a general basis of course it's a similar position and increasingly you need now to persuade cross judges if matters come to an assessment not only that the expert has been properly instructed but that he's used his time properly and you need the evidence to support that and again if the solicitor is unable to recover those fees perhaps from another party to litigation then his third the first thing he's likely to do is to turn to the expert and that's the expert to justify why he should recover them from the solicitor and of course it's a useful management tool for the expert to understand how much time he actually spends on the case perhaps before he quotes on further case very much so and again increasingly of course we are seeing experts being required to estimate in advance yes and time that they're going to spend then the cost they're going to incur mmm so being able to look back at previous cases where you've recorded time that you've spent knowing how you manage your time being able to give an accurate estimate and then being able to properly monitor and record your time as you go along are all important aspects of ensuring that you get properly paid at the end of the case well bear in mind our experts are not lawyers can you just clarify for them perhaps the contractual relationship between the expert the solicitor the client the legal services board or whoever yes this is at least in my experience a much misunderstood situation in a legal legal services commission funded case the first point of course is that you have no contract as an expert with the clients the claimant the the litigant you have no right of redress against that individual they cannot be required for example to top-up your fees if part of them is not recovered as far as the legal services commission is concerned again you have no contract with the legal services commission the legal services Commission in fact is quite blunt in some of its guidance about this that it really washes its hands of the position and that your rights and responsibilities rests with the solicitor so it's there that your contract is your contract is with the solicitor if for whatever reason you agree terms with the solicitor which are different to the terms that the legal services commission is prepared to meet then your right to recover the the difference between those is between you and the solicitor well I'm sure you'll deal with these are the the conference but some experts have written in to me asking specific questions can experts say no to accepting instructions well that's a fairly simple one the short answer really is yes they are there's no cab rank rule which applies as far as experts are concerned so fresh case fresh instructions and they're perfectly entitled to say no I'm too busy or I don't want to take that's personally an expert witness sense Lee instructed sister their standard terms and conditions and the solicitors want to change those what's the experts B position there well again and this comes down to the fact that the agreement between the solicitor any expertise like any other contract is like any other business and ultimately and subject to one of two limitations which arise because of the experts overriding duty to the court and it's for the experts to negotiate with this list at whatever terms he considers appropriate for him there's certainly no restriction on the expert negotiating his hourly rates or the times for turnaround to work or time for payment but of course it's a negotiating process and you have to come to some agreement with the solicitor so if the solicitor is particularly obdurate and wants to change them but come back to the point that you made earlier the expert can also say no indeed the experts ultimate right in all of this it is to withdraw labor and in fact is to move you to setting the instructions another experts made is what's the legal position when the legal services commission or the client is paid the experts disbursement to the solicitor but then the solicitor doesn't pay the expert or delays payment well again this this really comes back to the point that we were discussing a few moments ago the experts remedies are against the solicitor and although there is some talk at the moment of a pilot scheme being introduced whereby the Legal Services Commission will pay experts disbursements directly to the expert in certain situations that's not the position at the moment and the legal services commissions rights and remedies are between them and the solicitor and the experts are between him and the sisters so if the solicitor has been paid money to which the experts entitled it's for the expert to pursue that and ultimately his right is to bring a claim against the solicitor should have been a society's and so presumably that's the same an advice if whether they the solicitors been paid or not if the solicitor refuses to pay that but the expert still has a right against the claim against the solicitor exactly so and of course and even expert finds themselves in that position then they need to think carefully about why the solicitor hasn't been given the funds and if there's been a an issue where a judge has perhaps looked at matters on a honor but between the parties basis in contested litigation and has for some reason disallowed the experts fees then the expert needs to think very carefully as to whether or not he bears any responsibility for that before he pursues the solicitor but ultimately his remedy is to pursue mercilessness another experts written in it's as many letters of instruction have a paragraph or something like please confirm your agreement that should either the court or the LSC down will be very your invoice in the matter upon detail assessment you will reimburse the difference between the amount of the original to invoice the amount assessed by the court or legal services commission what's your next birthday though well a couple of possibilities first of all and it's up to the expert whether or not he is prepared to agree except there to that no term and although of course it is quite a common term and I know the number of standard contracts used by various and organization sisters organizations have a similar term to that and if he does agree that so and then that's probably at that perfectly permissible term and subject to to one qualification which is that and it was the effect of the term really is that the expert is saying that if a judge or the legal services commission say my fees are unreasonable I will simply accept a reasonable figure that that's probably fine but what an expert must always be very careful to do is not put himself in a position where his fears seem to be determined by the outcome of the litigation pronunciation so they've got no vested personal interest in the recycling trial things and litigation you know it's in effect and in that balance waiver on the basis that if my fears seen as being a bit too high I will take all that I figure that that's probably fine if the expert is prepared to agree to that and he doesn't have to it doesn't have to um fine this is becoming increasingly difficult for experts when the law firm actually gets into financial difficulties so the experts down the work have substantial work and then the Roth um goes bust what's the situation there in terms of administration part well again I'm afraid it comes back to the position that the expert is in there better nor worse position than any other creditor of the solicitor there is as I mentioned before for example in a public funded case there's no right for the expert to say oh well this was done under a public funded certificate therefore we'll the SS LSC please step in and fill the void so if you're working for a solicitor and you're worried about their financial good health then it's for you to watch out and take appropriate steps so perhaps a bit of due diligence on the part of the expert prior to accepting instructions very much there and if you have reasons for suspicion or if it's a affirm that you've never heard of and a quick type into Google doesn't come up with anything that we eschew as you then perhaps you need to look a bit closer so just say no just say no occasionally um now experts in previous conferences have raised some of these points can express refused to send the report to the solicitor or refused to attend court unless they receive payment first well again this really comes back to the fact that and the importance of terms and conditions as you were talking about at the start in my experience it is extremely rare to have terms and conditions with an expert whereby the expert is entitled to payment in our fans as their reason in principle why happen but but it is extremely rare and if you don't have such a term therefore your entitlement unless it's spelt out would be to payment within a reasonable time and therefore if you act precipitately for example by refusing to undertake work or refusing to attend court without payment in advance and an expert could easily put themselves in breach of their contract with the solicitor and which could in turn expose them to a risk of non-payment for any work they may have done or indeed ultimately to a risk of damages and either in relation to the claim generally or for any loss than the system might have suffered as a result um another suggestion experts have come up with is some withhold of current experts report from a sister who's owes money from a previous case I guess it's the same principle again it's the same principle as your first port of calls your terms and conditions which goes back to the importance of those and again my general experience is that in most cases what you have is a set of instructions per case and therefore and if you agreed to accept a set of instructions that will be on the basis that you're entitled to reasonable payment in a reasonable time for the work you do on that case so again you have to be very careful before refusing to do work in relation to that case because of some issue beyond the parameters of that particular case and a final question Roger and this is a big complaint for many experts is they spend a lot of work on the case they declared their Dara's they turn up to court counsel says thanks very much for coming but the case is settled what's the situation there in terms of the fees yes well I mean that is increasingly a difficult position as I'm sure you know of the Legal Services Commission towards the end of last year changed their own provisions such that they now simply will not pay cancellation fees where notice of cancellation is given at least 72 hours in our funds and many experts and expect or provide in their agreements that their cancellation period is much longer than that and the prime focus again has to be your terms and it is important that you have something in your terms and conditions dealing not only with what cancellation period is but also what you're entitled to in that situation in the first place if you have such a provision then you can look to the solicitor to pay it so it's designed creasing ly struggling however both with the Legal Services Commission and with cost judges on assessments where costs are between the parties to recover either cancellation fees where the expert for example claims the full daily rate for every day of that trial that would have taken place now all where there is a lengthy cancellation period so an astute solicitor and we'll try to be very restrictive in the agreement that he comes to with the expert as to what is payable and but again ultimately we come back to the importance of your first question if it is in your terms and conditions' your agreement is with the solicitor and whatever problems they may have even they've agreed to it you are entitled to be paying it because they expressed 10x up deals for that well Roger I'm really grateful to you and it's very much looking forward to the conference on in November so thank you very much for watching we look forward to seeing you on the night of November thank you very much you