I am aware that the rates that I charge are usually pretty competitive, especially for publicly funded work such as expert accountancy carried out in criminal defence matters.  It was with some shock that I was approached for a tender and warned that the new rates would limit my hourly rates to £144!

I quickly searched the Legal Service Commission’s web site and found their paper “Legal Aid Reform – Expert Rates” – to be implemented by 3 October 2011.  Sure enough, the rates did include the hourly rate of £144 for a “Partner” expert accountant working out of London.  Of course this was the top rate, and as most expert witnesses will use other resources in their firm, the resulting “composite” or average hourly rate can be somewhat lower.

In order to be competitive I charge my highest rate for input into any assignment that I consider to require my full skills as an expert, or “Partner” input.  I also charge a lower rate for work that involves routine accountancy work – I call it my forensic investigation rate.  At the end of the day, it is the composite rate that interests me as I am sure it does the LSC.  However, there is no guidance on the LSC site for this sort of rate which will depend on the nature and complexity of the work – and I imagine that a sole practitioner will need to temper his or her urge to simply quote at the highest partner rate if they wish to remain competitive.

The rates in the framework fall well below big high street accountancy firm rates and even (boutique) niche firms such as my own may sometimes struggle with them.  My worry is that the rates will be more attractive to the “have a go” accountant found in the smaller or more regional firms and that in some cases quality will suffer in the competitive market.

I note that the LSC caveat their new framework with the possibility of increasing the hourly rates:

• where the complexity of the material is such that an expert with a high level of seniority is required; or
• the material is of such a specialised and unusual nature that only very few experts are available to provide necessary evidence.

Unfortunately this may have the effect of allowing the largest firms to consume the available resources for a few high value and high profile cases leaving little in the pot for the mainstream work – which actually in each case is just as important and very likely as relatively complex to the respective parties as the big cases – watch out for another London Underground maybe?

One thing I know is that although the paper indicates prior authority is not mandatory – I will always insist on funding being in place before I start work, unless I am prepared to accept that the work is being done for nothing and payment will be a bonus!

Responses are beginning to be drafted to the Legal Service Commission’s consultation paper on expert witness fees.  Bodies representing experts are busy collating what are probably replies that are so obvious that it would be foolish to think that the LSC had not already thought about them - but stranger things do happen all the time!

The general feeling is that if the fees are capped in an effort to shave 20% from the £100 million plus that is paid annually to publicly funded expert witnesses, the supply of expert witnesses willing to undertake publicly funded cases will reduce.  This would in turn reduce access to justice for defendants.

I do not understand why the expert witnesses must lose 20% – the lions share of funding cuts (when £100 million is only 0.5% of the Legal Aid annual budget).

Speaking as a forensic accountant we are always considered to be expensive.  Our hourly rates are around £40 to £250 (I am exlcuding the top tier of 10 largest firms of accountants) which includes all levels of staff.  A composite rate of around £150 would not be remarkable.  The proposals indicate that this composite rate will be more than halved, with a maximum hourly rate for a senior expert witness being £100.  I have examined these rates in detail (carrying out a year of part time academic research in 2006) and in my dissertation for my Masters Degree in Fraud Management concluded that forensic accountant’s rates were similar or less than the average cost of putting police officers on the beat or employing Criminal Prosecution Services case workers.

The LSC enjoys a discount of some 20% on average of the rates paid to expert witnesses undertaking privately funded work – because the LSC holds a monopoly and is able to reduce market rates.

There are many ways that the LSC could reduce its spend without impacting on the essential service provided by experts to the criminal justice system (I will save for a future post the reasons why the spend on experts should be increased!).  A couple of these are:

1. Introduce an initial outline “investigative” report that is used by parties to negotiate – reduce the need for full blown forensic reports.  (My Masters research indicated that this could be an independant “joint” report though this would not be received well by criminal defence lawyers).

2. Early involvement of the expert can save money in the long run – this is one of my hobby horses.  Very often I am instructed at the last minute by a desperate party clutching at straws and not really needed.

3. Better instructions to experts – very often the lawyers are just going through the motions – dotting the “i”s.  They do not know what they want and are hoping for a silver bullet (smoking gun?).  In these cases an early joint report would assist.

For my part the funding situation is one set to cause changes in the criminal fraud defence market place and therefor will be revisited in my diary blog many more times in the future!

Mark Jenner