Is it reasonable to cap fees paid to Expert Witnesses?

The Ministry of Justice (MoJ) has recently published a Consultation Paper that includes proposals to impose a cap on the fees that can be paid from the legal aid fund to expert witnesses.

Published on 18th August 2009, the Consultation Paper ‘Legal Aid: Funding Reforms’ includes proposals on expert fees in both the civil and criminal justice systems.

In summary the MoJ:

• accepts that quality expert evidence is essential to the effective running of the civil and criminal justice systems
• reports that many ‘providers’ (that’s probably MoJ-speak for lawyers) say the selection of the right expert is critical to the outcome they can achieve for their clients
• recognises that the expert witness community is a broad and disparate body and encompasses a range of motivations for undertaking forensic work
• explains that the existing pressures that tend to restrict the supply of experts willing to undertake publicly funded work have pushed cost control behind more pressing concerns over quality and supply of experts.

The MoJ also notes that:

• fee rates differ between criminal and civil cases
• fee rates vary, for the same work, between experts disbursement, spend (which includes expert fees) in public family law cases has risen by 46% in the last 4 years
• it plans to stop paying cancellation fees, to cap fees for travel time to £40/h and to cap mileage rates to 45p in civil legal aid contracts awarded from 2010.

The MoJ’s long term aim is to reduce the spend on expert witness fees by 20% and to introduce fixed fees for experts undertaking publicly funded work – but how realistic is this?

The initial move of the MoJ is to cap fees using guidelines issued in 2003!  As expert witnesses in computer forensics, CYFOR is experienced in working within the confines of legal aid.  Currently, approximately 40% of our cases are funded by legal aid and capping fees at the proposed rates will have a significant impact on CYFOR, as it will on other experts.

Although the current economic crisis has brought about a climate of budget cuts and penny-pinching, is it fair to pay experts fees that were current 6 years ago?  Company operating costs have increased considerably since 2003 and the proposed fees would mean investigations may be conducted without covering these costs, or even at a loss.