Experts instructed by Unrepresented Parties (Previously known as litigants in person) – 30 May 2013

What difference does an unrepresented party make to the way an expert witness would wish to be instructed and paid?

Legal aid cuts introduced in April 2013 will to a great extent remove public funding for civil  proceedings  i.e. that part of our legal system that involves relationships between individuals –  the law of contracts. 

This and the current  economic climate, will almost certainly lead to an increase in the number of people wishing  to represent themselves in legal proceedings rather than retaining what are perceived to be expensive lawyers.

An unrepresented party is authorised to instruct an expert witness and call expert evidence, however there is a greater risk that the accuracy and quality of the instructions will fall below the standard normally to be expected.

The expert witness that is unfamiliar with court practices and procedures will not have the guidance and assistance of an instructing solicitor, and may also be unaware of the possible costs consequences. 

Since Jones -v- Kaney and Phillips -v- Symes, solicitors are very aware of the importance of making the expert witnesses realise that a costs order could be made against them if they are found to have ‘acted recklessly or in flagrant disregard’ of their duties to the court. In Phillips -v- Symes the court said that experts should be referred by the instructing solicitor to the relevant sections of the Civil Procedure Rules and the declaration that experts must sign. Clearly, the in-experienced expert could be exposed without the watchful eye of the instructing Solicitor.

It is hoped that the ‘leeway’ the courts will give Unrepresented Parties (litigants in person) will also extend to the experts they instruct. Experts instructed by Unrepresented Parties  would be well advised to utilise their right to seek guidance from the court on any aspect of their instructions or procedures about which they are unsure.

One of the principal reasons that a person chooses not to be represented is likely to be that he or she is unable to afford the cost of a solicitor. This should not be lost on the Expert considering accepting these instructions. The Expert should recognise that an Unrepresented Party may have difficulty in meeting the expert’s fee. In addition, the time and expense of the expert may well be increased by the Unrepresented Parties lack of legal knowledge. While CPR 48.6(3) (a) permits the unrepresented party, if successful, to recover expert fees as a disbursement from the other party, it is likely to be a long process.

If the other party is also unrepresented, there is always the possibility that the expert(s) fee will not be recovered at all! Paragraph 156 of Access to Justice for Unrepresented parties (Litigants in Person) anticipates that experts may, consequently, be somewhat reluctant to accept instructions from unrepresented persons. The Civil Justice Council’s working party suggests that, in some cases, experts might consider taking pro bono work. If not, then it acknowledges that it is not unreasonable for experts to ask for payment to be made in advance.

Author: Clive Adkins, 30 May 2013

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