Written evidence from Somek & Associates
The Future of Legal Aid – Response to Consultation
I am an occupational therapist and have acted as an expert witness in personal injury and clinical negligence claims for over 30 years. I now run a consultancy of over 200 experts (from various health professions), who are fully trained in the role of the expert witness and the court procedure rules (civil being the most common on our field, but also criminal and family courts). We have acted on thousands of cases, including many that have been LAA funded.
Here I am commenting specifically from the perspective of expert witnesses and our experience.
There has been increasing difficulty in agreeing instructions for expert witnesses due to the wholly inappropriate and inadequate codified rates. I consider this has impacted on access to justice.
Expert witnesses are fundamental to the justice system to advise lawyers and the courts on technical matters, where these are significant and otherwise outside the capability of the court. Not every case does require experts. But where required, without expert witnesses of appropriate calibre decisions will be based on a lack of knowledge about key technical issues in the case and are likely to result in wrong decisions and lack of justice.
Defendants (PI/clinical negligence), typically, are able to fund the expert witnesses of their choice, and for access to justice to be achieved, claimants also need to have access to expert witnesses of equivalent stature and ability.
Expert witnesses are not just experts. Primarily they must be an “expert” in their field, having the required qualifications, significant experience, and a good, if not excellent track record. Additionally, they must be trained in a “new field”, that of legal practice related to their field, and specifically the court procedure rules, legal tests and principles, reporting requirements, and processes such as Experts’ Discussions, answering Part CPR 35.6 questions, and giving evidence in Court. The have a duty to maintain their “legal” CPD as well as their professional (in my case clinical) CPD, such that they remain current with legal rules and legal cases relevant to their area. Without this performance is likely to be poor and costly to any case.
Experts at the top of their field are always very busy people, not only clinically, but undertaking research, writing articles, giving presentations and typically being the “go to” mentor in a crisis. They are really important in terms of access to justice, having the deepest and broadest knowledge. The have worked very hard to get to this position and command higher fees than their junior colleagues.
I have articulated the above as I consider the whole issue relating to expert witnesses and their fees has been badly misunderstood, and requires complete review. I would be happy to contribute.
The background is as follows:
a) 7 years ago codified rates for experts were decreased by 20% - they were already significantly lower than normal fees charged by experts, and this made absolutely no sense at all.
b) These rates have not changed for 7 years, and yet salaries and fees, and inflation, have increased incrementally over this period.
c) Expert witnesses, in abiding by the Civil Procedure Rules, must be “expert” in their field and therefore are more senior and command high fees; Moreover they must be trained in the legal process and court rules – an even higher bar.
d) The codified rates are so low that they do not cover costs for the most part and therefore experts are very reluctant to undertake LAA work.
e) When they do they generally negotiate a higher fee, with such funds for the “difference” being sort from the client; this approach has hitherto in civil litigation not been allowed / and was frowned upon. A sensible solution would be to have 2 levels of cases i) LAA to fund fully and ii) LAA to give a contribution at whatever level it chooses (eg the codified rates) allowing a client / applicant / claimant / defendant to “top up” if they so choose. It should be made clear that the LAA do not fund fully but provides a “contribution”
f) When split fees have been agreed with a client, we are asked to submit 2 invoices: i) For LAA reflecting their rates and ii) for the balance, addressed to the client – the additional problem with this is that the LAA will therefore state that they can instruct experts for those codified rates – because they do not see the second invoice! They are either unaware or ignore the fact that there is a balance to pay. In my view where a split invoice is provided there should be transparency such that the full fee is identified, and showing the split attributable to the LAA and to the client or other funder. Expert witnesses would be satisfied, I believe, with this arrangement.
g) Prior authority for higher fees is technically available but with such limitations, in reality, this is rarely used.
h) We are often told by clients that we can charge whatever hours we like as the LAA are not interested in the hours, but only that the codified rate is used ie the implication being that we can charge our usual total fee as long as we record the codified hourly rate as the one used. This is arguably dishonest, and we will not do it; moreover it simply does not make any sense and would not be required if sensible rates were allowed.
i) The whole system is administratively intensive and inefficient.
j) It probably results more junior clinicians being persuaded to do legal aid cases, leading to an uneven playing field and discrimination against those who require legal aid.
k) Solicitors have huge problems finding experts to do LAA work.
I wish also make a very specific comment regarding occupational therapists – the rate for occupational therapists is lower than the rate for professionally comparable colleagues (physiotherapists, nurses, midwives and speech and language therapists), and yet publicly, salaries for these professions are the same. Moreover as expert witnesses occupational therapists deal with the most significant and difficult aspect of quantum on personal injury/clinical negligence cases, in terms of assessing costs for care and equipment (the highest aspect of a claim, often in the multiple millions). This is professionally inappropriate and I ask that the rate occupational therapists be placed on a par with their health profession colleagues.
This is extremely difficult in the current economic climate, but in many ways the role of the Legal Aid Agency is ever more important. It seems to me that it is there to ensure that those who do not have the means to fight for justice without appropriate help are not disadvantaged. This is a principle that should never be lost in our society.
However, perhaps a review and overhaul may be advantageous in terms of ensuring it remains fit for purpose in the twenty first century, and following the ravages of a global pandemic.
It appears to us that the LAA is very remote, and certainly out of date. Public bodies such as the NHS, Social Services, the Police etc., update their processes on an on-going basis, and all have updated their salary and fee structures if not annually, certainly regularly, and yet the fees for expert witnesses are lower than they were 20 years ago. Surely this cannot be right.
I accept that the Legal Aid Agency is a public body and must use its funds carefully and responsibly. If is it not able to fully fund cases to meet the needs, this should be transparent and it should work with other bodies to look at making up short falls. What it does at the moment, in respect of using expert witnesses, is simply disingenuous and arguably dishonest.
I cannot comment on this if you are referring to employed staff.
My comments in respect of the use of expert witnesses are made above.
Issues relating to service users using technology related to cases and the courts, I will leave to others.
From an expert witness perspective this probably falls into three areas:
i) Remote assessments of claimants
Face to face assessments are always considered to be the gold standard. However, where as a result of COVID-19 we have been unable to assess in person we have resorted to a combination of video assessment (using a platform such as Skype or Zoom) and telephone assessment. It is our view that a very high percentage of what is achieved face to face is achieved, although there are some definite disadvantages by assessing in this way.
There are some cases where remote assessment is not possible for various reasons, including health, cognitive or sensory issues, or even technological issues.
An additional advantage is that of reduced cost to a case due to not incurring travel costs and expenses.
I am happy to expand upon the above if it would be helpful.
ii) Case conferences
These have often been held by telephone in any event. Since COVID-19 they are typically held via a video platform which is much more efficient and effective than telephone. Using this method reduces costs of meeting face to face, and we consider is very successful in achieving its purpose.
We have had a couple of civil trials where our experts have attended remotely. Whilst this does work it is not as effective as attending the court in person for many reasons. We would say it is a good alternative if attending in person is really not possible. Additionally, it may be warranted if the subject matter upon which the expert is giving evidence is very straight forward and uncontentious. Again there is a cost saving.
I would be happy to expand if required.
Some of my comments are made in the point above.
Additionally I can inform you that a number of assessments (condition and prognosis / quantum, capacity assessments, ability to stand trial) have been pushed back due to being unable to undertake face to face assessment. In particular, this was the case in early lockdown in Spring, however we have facilitated COVID-19 safe face to face assessments wherever possible, since May 2020, requiring strict procedures to be followed on behalf of the claimant and any carers present, and the expert. This is under constant review as the situation changes.
The challenges for legal aid are probably better articulated by others; they are undoubtedly ethical, economic and political.
In respect of my professional perspective as an expert witness I consider the whole issue of the use of expert witnesses and the codified rates requires complete review. The issues and needs are undoubtedly different across different courts, and views should be sort from all quarters and all perspectives – judges, lawyers and expert witnesses.
Occupational Therapist / Expert Witness
CEO, Somek & Associates Limited