Recovery of Expert Report Fees
Instructing the right expert in a claim is crucial, whether you pursue or defend the claim. The type of experts instructed will depend on the subject matter of the case. One of the most obvious examples is if the pursuer has sustained an injury, solicitors appointed will instruct a medical expert from an appropriate field to prepare a report commenting on the injuries sustained. Experts in collision investigation, engineering, occupational health, employment and pensions are all common place.
Expert reports are often produced in court and come at a considerable cost. Pursuer solicitors want to recover those costs if successful.. Similarly, experts may have attended a Consultation or Court and have incurred travel and attendance fees.
In order to recover these costs, the pursuer's solicitor must go through a process of having their chosen experts approved by the courts. This process is referred to as "certification" of the experts
Deciding whether to agree to Certification
When defenders receive a request for the certification of their opposite number's experts there are a number of factors which must be considered:
- Whether the proposed expert assisted the court in its task (or would have assisted if the matter settles before trial);
- Whether the expert had the necessary knowledge and experience;
- Whether the expert was impartial in his or her assessment of the evidence
- Whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.
In the event that the defenders consider that the expert should not be certified, then they should oppose the application and the matter would call before the court at a hearing.
Recent success
DWF was instructed to defend a claim for personal injury following a road traffic accident. The pursuer complained of a psychiatric injury, soft tissue injuries and ongoing pain. In support of the claim for solatium, the pursuer's solicitors instructed the following experts: a GP, four Orthopaedic Surgeons, a Psychologist, a Psychiatrist and a Chronic Pain specialist.
DWF argued that the number of experts was disproportionate and unnecessary. DWF was successful and certification was only granted in respect of two Orthopaedic Surgeons, the Psychologist and Chronic Pain expert. The savings on expenses totalled in excess of £10,000.
Will the courts certify multiple experts from the same field?
It is difficult to draw any firm conclusions on the judicial approach to this question as each case will, inevitably, turn on its own facts and circumstances. However, the court will give consideration to the necessity of each instruction and if it is concluded that solicitors are "expert shopping" for a more favourable opinon then it is unlikely that the court would endorse this practice.
In the case above, the court held that the instruction of two Orthopaedic Surgeons was reasonable because the pursuer complained of multiple injury sites and the Orthopaedic Surgeons had different areas of specialism, so this is worth bearing in mind if considering whether to take this argument.
What do you do if you consider the expert's report to be too expensive?
It is important to note that the process of certification does not consider the amount charged by those experts in terms of their report fee and whether that sum is reasonable. Those issues are addressed before the Auditor at a separate hearing called a Taxation or Diet of Assessment before the Sheriff Clerk, if it is a Summary Cause action.
There is also an opportunity to challenge the cost of the medical report pre-litigation if parties agree to a joint remit to the Auditor in respect of the report fee.
MedCo and the OIC Portal do not apply in low value whiplash claims in Scotland and there is therefore no set scale setting out what medical experts can charge in Scotland, as there is in England and Wales. In practice, in considering whether the charge is reasonable, the Auditor will consider the outlay with regards to the particulars of the case, scrutinise the work undertaken, similar fact evidence, and hear submissions from both parties' solicitors or law accountants. As you may expect, the process of having a report fee put before the Auditor also comes at a cost.
The precise charge will depend on the case and DWF can advise you of anticipated costs. If the sums in dispute are marginal then it may prove to be an uneconomical process - considering that case in isolation. That is not to say this is not a worthwhile exercise and in particular our Scottish fraud team have strategies in place for dealing with particular medical expert fees. With experts fees continuing to rise, it could certainly be effective in challenging a frequently encountered problem or testing a point for use in future cases.
If you wish to discuss the use of experts and their related fees please contact Steph Seidel.
Author: Steph Seidel, Senior Associate
