Retired barrister, Giles Eyre, and MAPS’ managing director, David Stothard, consider the amendments to the Civil Procedure Rules from 1 October 2023 and the potential impact on medical experts.
The issues
As a medical expert witness, you may well have attended training about the legal process or had personal experience of dealing with lawyers. It is a well-rehearsed trope that lawyers will charge for every minute of work that they do, and, worse, they will never do anything in less than a six-minute unit, even when it hasn’t taken that long. Everyone thinks that lawyers charge too much. In the personal injury and clinical negligence legal sector, the pressure to reduce legal costs has become an objective for the government, the judiciary, the NHS, the insurance industry, and for the lawyers representing defendants. When lawyers representing claimants say that this is an attack on access to justice, they are generally accused of being interested only in keeping the legal costs ‘gravy train’ rolling for their personal benefit. The whole issue has become politicised and divisive, and there has long been a feeling that ‘something’ must be done.
So, why does this matter to medical expert witnesses working in this sector?
We have an adversarial system of civil justice. Each side instructs their own representative, and while the expert is impartial, the opposing parties argue out the case until they reach a settlement or go to court where a judge decides the outcome. The loser pays the winner’s legal costs, but not all of them; only an amount agreed or assessed by another judge as reasonable and proportionate. In essence, the costs are calculated by applying the lawyer’s hourly rate (set in bands by level of experience and geographical location) by the time taken to conduct the matter. The process of arguing about costs has become a specialist sub-sector within the legal sector conducted by specialist costs lawyers.
If all of this sounds to you like something from Dickens’, then the idea of fixed costs may seem appealing. Rather than the costs of every case being worked out individually based on the time spent, might it be better to have a set of ‘fixed costs’ which reflect the work that should be involved in dealing with a typical case; or at least, the costs the other side should be expected to pay when they are unsuccessful in defending a case?
There are currently fixed costs in ‘portal’ cases, which are (broadly) personal injury cases with damages valued at up to £25,000. These are cases which are pursued initially through the supposedly simplified claims portals (there are two!) and then through the courts in the small claims track and fast track. In some of those cases which involve road traffic accidents (RTA), the amount of the expert’s fee is also fixed by the Civil Procedure Rules. The level of expert witnesses’ charges has otherwise been left as the amount which is ‘reasonable and proportionate’ in each case.
Experts have not been immune to the increasing pressure on lawyers’ costs, with 96% of experts report having experienced delays in payment. Some medical reporting organisations (often referred to as ‘agencies’) and law firms have even gone out of business or exited the market, leaving experts unpaid. Requests to defer payment of expert invoices until the end of the case are common, as are surprisingly late complaints about the quality or usefulness of a report delivered, combined with an argument for reduced payment. Such problems are so routine that there are now debt recovery firms who specialise in recovering fees on behalf of experts from recalcitrant law firms.
Some experts will have experience of a case in which they are involved going through the court ‘budgeting’ process currently used in multi-track cases. All too often, this plays out as the expert being asked to say how much time they will need to deal with the remaining issues in the case, only to hear back that the judge decided that they should need less time than requested, with the costs limited accordingly.
Life is about to fundamentally change for the lawyers who are running many claims. From 1October 2023, the 156th amendment to the Civil Procedure Rules comes into effect, introducing a new ‘track’ between the fast track and the multi- track, and very greatly extending the regime of fixed recoverable costs (FRC). This is the most fundamental change in the Civil Procedure Rules in a decade, as time spent, hourly rates and experience-based charges all disappear for those cases affected.
The new regime
Currently, injury claims for damages between £1,500 (or £5,000 or £1,000 for RTA depending on the specific facts) and £25,000 are generally allocated to the fast track, where the trial is likely to last for no longer than one day, oral expert evidence is limited to one expert per party in any expert field, and expert evidence is limited to two expert fields. This track generally provides a simplified procedural system, allows for no cross-examination of medical experts, and in some cases legal costs (which can be recovered by the successful party) are set by FRC.
Claims over £25,000 enter the multi-track, which offers a flexible route to court procedure which is (more) made-to-measure and has no FRC. Costs which may be recovered are limited by the process of costs budgeting shortly after the commencement of legal proceedings and finally resolved, in the absence of agreement, in the process of costs assessment, a further contentious process after the end of the substantive claim, which may take many months.
From 1 October 2023, fixed recoverable costs (FRC) will be extended across the fast track, and a new intermediate track for cases valued up to £100,000 will be introduced in which there will be FRC. What can be recovered will be set out in a grid or table and will depend on the stage of the claim at which settlement is achieved, the complexity of the claim and its value. Costs budgeting is done away with, and the process of assessment is largely irrelevant.
The new intermediate track is intended to incorporate cases which can be tried in three days or less, with no more than two expert witnesses giving oral evidence on each side. Like the fast tack, this will also have four complexity bands (one to four in ascending order of complexity) with associated grids of costs for the stages at which the claim settles.
Although judges will retain the discretion to allocate more complex cases valued at under £100,000 to the multi-track, so that cases accepted as complex will not be inappropriately captured by the extended FRC regime, past experience suggests that this will be sparingly exercised. Standard court directions will apply for all claims within the intermediate track.
The new rules as to FRC will apply to claims where proceedings are issued on or after 1 October 2023, except in the case of personal injury claims, where the new FRC will apply to personal injury claims where the cause of action (generally the date of the accident or injury) is on or after 1 October 2023, and disease claims where the letter of claim has not been sent to the defendant before 1 October 2023.
FRC will apply to all cases in the fast track and the intermediate track (except in relation to housing claims, which are normally in the fast track, when the implementation is delayed for two years for further work on the figures). There are also some very limited exceptions where claims will not be allocated to the intermediate track, but will go to the multi-track, and so will avoid FRC:
- Claims for mesothelioma and other asbestos-related lung disease;
- Claims for clinical negligence, unless (i) the claim is one which would normally be allocated to the intermediate track i.e. damages up to £100,000; and (ii) both breach of duty and causation have been admitted;
- Claims for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;
- Claims against the police involving an intentional or reckless tort, or relief or remedy in relation to the Human Rights Act 1998, but this does not apply to a road accident claim arising from negligent police driving, an employer’s liability claim, or any claim for an accidental fall on police premises;
- A claim that the court could order to be tried by jury (fraud or defamation).
FRC will not apply for the time being to clinical negligence claims where damages sought are up to £25,000, although this can be expected soon, as the government has announced a plan to capture those cases in a similar FRC regime from April 2024.
Special provisions are made in relation to noise induced hearing loss (NIHL) claims where FRC will apply unless the claim is valued at more than £25,000, it is a claim by a member of the armed forces in respect of their service career, it is allocated to the intermediate or multi-track, it is brought against four or more existing (or insured) defendants, is a test case on issues of breach of duty, the defendant alleges hearing loss is de minimis, requests a second audiogram, or requests their own medical evidence, or the only defendant is on a list maintained by Claims Portal Ltd.
Medical expert fees
While claims, other than those previously mentioned RTA cases and small claims, do not involve fixed costs for medical experts, the fees claimed by the medical expert in the final report still have to be justified to the court and must be ‘reasonable and proportionate’ to the claim. The reasonableness and proportionality of the fee is likely to be seen in the context, not only of the ‘complexity’ of the claim now seen in one of four categories in claims up to £100,000, but of the overall costs of the claim, which will be subject to the FRC grid.
In that context, the new rules limit the length of an expert’s report. The new rule CPR 28.14(3)(c) says that ‘any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report’. This was not something which had been consulted on and it seems difficult to see how that will be made to work in practice, as there is currently no guidance on this change.
Conclusion and learning points
The new regime fixes what lawyers can recover in fees from litigation of almost all cases valued up to £100,000. This is the overwhelming majority of the personal injury sector and a similar regime is to follow for clinical negligence cases. This will limit the profitability of lawyers’ work, but will provide certainty and should provide a much faster recovery of costs at the end of litigation.
To the extent that lawyers consider their profitability is restricted, they will be anxious to ensure that they do not have to fund the payment of medical experts’ fees themselves if the amount they can recover as disbursements is less than the amount the expert claims or expects to be paid. The two other potential ways to share the ‘pain’ of under-recovered disbursements is to have an arrangement under which the claimant makes up any difference out of damages recovered, or to persuade the expert to accept less than the amount claimed.
This is an extension of what many medical experts have already experienced since the so-called ‘Woolf’ and ‘Jackson’ reforms of recent decades. The experience of the current FRCs is that, as the lawyers’ costs are more easily resolved, there is an increased focus and challenge on the fees charged by experts. The likely outcome will be an amplification of the downward pressure on their fees, as well as pressure to limit report length, restrict the number of extra items for which the expert would seek to charge beyond the cost of a report, and any limited agreed additional input.
It is useful to be aware that, despite the implementation of the new rules, at the time of writing there is one outstanding judicial review application and another threatened, challenging the rules in numerous respects. The Expert Witness Institute has formally objected to the rules committee, in the strongest terms, to the 20-page limit on expert’s reports. Furthermore, following a consultation process, the government has already acknowledged that changes to the rules will be necessary and will be dealt with in April 2024, alongside the proposed clinical negligence fixed costs.
Giles Eyre is a retired barrister and an Associate Member of Deka Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published by Professional Solutions Publishing and sold through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .
Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p and ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’ (normal price £69.95) is available at £50.00 plus £4.95 p&p only direct from the author by email to geyre@dekachambers.com. More information about the books and reviews are available at www.Medico-LegalMinder.net