A Cautionary Tale
In March, the District Judge in a large North Eastern town (which we can call Millport) was called upon to assess the costs of a personal injury claim. She did so against the new principles that have been imposed since April 2013. In particular, she looked at the costs of the expert witness and was instructed to report to the Court by the Claimant's solicitors.
In a remarkable attack on what she called "ambulance chasing" experts, she disallowed half of the fees claimed - on the basis that they were simply too high. Regard had to be taken, she said, of the wind of change sweeping through the legal system. Whilst this might not have come as a surprise to some who visit the Millport County Court on a regular basis, it certainly shocked the costs draftsman who had turned up expecting a pleasant, if gritty day in that far from bijou land.
The decision was appealed, successfully, and the fees restored as they were comparable to those elsewhere in the industry on the evidence provided to the Circuit Judge by counsel. But the lessons of the attack, and the appeal, are clear - experts need to be able to justify their fees both against market rates and objective evidence.
In the appeal, counsel was able to show not only the market rates but also that the experts had provided breakdowns of their work. Their fee notes, which the District Judge had apparently not considered, showed their hourly rates (which were identical to counsel's) and also gave:
* the time spent considering instructions and documents
* the number of pages of medical records
* the number of images
* the number of pages of witness statements
* the time spent on the examination of the claimant
* the time spent then dictating or preparing the report
* (in the case of the Consultant), the time spent answering Part 35.6 questions
In this way, the appeal judge was satisfied that, had these documents been considered, then the Court below would have awarded full costs. There was a legitimate and principled basis for fees and they should be awarded in full.
The lessons learned were, therefore, perhaps to avoid Millport but more importantly to ensure that expert witnesses put fully explained fee notes to solicitors or agencies, even if they are working to fixed fees.
It is a policy that is commended.
New Fee Proposals
Fixed fees are being reviewed - the consultation on whiplash reform is now closed and new rules are expected (well half-expected, by experienced Ministry of Justice watchers) in October this year. Lord Faulks explained on 2nd May how the government proposes to change the pre-action protocol for low value personal injury claims in road traffic accidents (RTA Protocol) and Parts 36 and 45 of the Civil Procedure Rules (CPR). This is of key importance in the whiplash reform process and the rules that will emerge are to be implemented by October.
The Government proposes to fix fees for medical examinations and reports in whiplash claims as follows (excluding VAT):
1) GP £180
2) Consultant Orthopaedic Surgeon (including records review) - £420
3) Chartered Physiotherapist - £180
4) Obtaining an addendum report on medical records - £50
5) Obtaining medical records - more than £30 plus the direct cost from the holder of the records and limited to £80
6) Answering questions under rule 35.6 - £80
Perhaps the last is the most remarkable, especially for veterans of reams of questions from certain Manchester defendant firms. It may be possible to argue for more if there are reasonable but lengthy questions - we shall wait and see.
These figures are interesting in that they do not differ too much from the existing rates agreed within the "industry" as the Millport judge is wont to say. They will, however, give transparency to how much is taken by agencies and how much is left to the expert. Where some GPs are being offered, and accepting, from agencies £25 of the £180 available, it may at last alert them to the folly of their ways.
The more so if they read the financial pages - whence it appears (allegedly) that a well known medico-legal agency is looking for a buyer: the price? £40 million. Now if that is not ambulance chasing....
Next time: Mediating NHS changes - what can expert doctors offer?
By Jonathan Dingle, Barrister-at-Law of 218 Strand and a leader on Specialist Info medico-legal courses.