Subject Area: Strategic Planning
Mark Solon discusses the effect of the Legal Aid Sentencing and Punishment of Offenders Act 2012 and how firms and experts will need to work around the cut backs.
The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) received assent on 2 May 2012 and will remove legal aid support for most cases involving housing, welfare, medical negligence, employment, debt and immigration.1
While LASPO does not include provisions that directly impact on expert witnesses, it will hit hard the many law firms across the country relying on legal aid and it seems highly likely that there will be a reduction in cases in the areas affected.
Law firms are currently digesting the provisions of LASPO, and considering ways to work around the drastic cut backs, including taking work on a no-win-no-fee basis. However, as the Government aims to bring spiralling legal costs under control, under LASPO claimants will no longer be able to claim success fees from losing defendants, making no-win-no-fee cases far less attractive, particularly in cases of little monetary value.
LASPO is the result of a wholesale review by Lord Justice Jackson into civil litigation costs. The act implements many of the reforms recommended in his report of 2009, however, many reforms are yet to come, and these may have a more far reaching impact on experts.
In a consultation unveiled this year by Justice Secretary Kenneth Clarke, for example, it is proposed that more cases be dealt with in the Small Claims Court, where parties are only able to instruct one expert each and solicitors’ fees are also capped. Not only may these cases become less attractive to solicitors but disbursements such as expert’s fees are expected to be squeezed.
The consultation, entitled Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System, includes three key measures:
the minimum value of High Court claims will increase from £25,000 to £100,000;
the maximum value for claims in the small claims process is to be increased from £5,000 to £15,000;
compulsory mediation is to be introduced for small claims.
A further crackdown on costs will come if the Government implements Jackson’s proposal to introduce Qualified One Way Costs Shifting (QOCS), under which successful defendants will no longer be able to recover their costs from unsuccessful claimants, unless the claimant has acted fraudulently or is extremely wealthy. In turn, ATE (after the event) insurance—which is taken out by Claimants to cover their costs and disbursements—will no longer be recoverable. The move may mean solicitors are more cautious about bringing legitimate claims but (experts beware) there has been market speculation that QOCS will lead to inflated and fraudulent claims. It is very early days but as in all cases, experts should take care not to become embroiled where they doubt some or all of the validity of the claim.
While on the face of it these cut backs and proposals appear to spell doom for a large proportion of expert witness work, for well-trained experts that need not be the case. Many of the changes target the genuine oversupply of poorly qualified experts who are contributing to delays and unnecessary costs across the legal system.
A report into the quality of experts funded by the Family Justice Council and published in February 2012—Evaluating Expert Witness Psychological Reports: Exploring Quality—concluded that 20 per cent of experts were inadequately qualified, 90 per cent maintained no relevant clinical practice, two thirds of reports were below the expected standard and in one court all expert witness psychology reports were generated by witness companies who take a commission for instructions.
As in any industry, experts who are adequately trained and maintain contemporary knowledge will always be more in demand.
For legally funded work, the cut in rates for expert work introduced by the Legal Services Commission last year is undoubtedly causing experts to question whether it is worth getting out of bed. However, the courts are working hard to improve the efficiency of the legal process including the timely exchange of expert reports, the appointment of a single or joint expert report, and trials of "hot tubbing", under which experts meet together in court and discuss the issues they disagree on before the judge.
In turn, experts must take their own steps to improve efficiency and reduce the time they spend on cases, focussing on core areas and perhaps a reduced number of questions.
There are many uncertainties currently surrounding the provision of expert evidence and this time next year the picture may be clearer. But one thing that is not in any doubt is that, in very many cases, expert testimony remains indispensable.
1. These provisions will take effect in April 2013.