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Experts' fees

23 May 2012

We have recently had a discussion with officials at the Ministry of Justice (MoJ) about the issues arising from the new experts' fee rates.

The Law Society is strongly of the view that control of experts' fees is not just legitimate but necessary. If the government is unable to make savings here, it will have to make them elsewhere, and this is likely to be either through scope or fee cuts. But of course there is a balance to be struck between restricting excessive fees, and cutting so far that experts will not undertake necessary work.

On the issue of surveyors' fees, the Ministry has acknowledged that the rates set in the regulations were based on the fees for 'drive-by' valuations. Therefore if any additional, or different work is required, such as a full survey for the purposes of a disrepair claim, this will be likely to meet the requirements for prior authority to exceed the set rates - subject to the required justification being provided. The actual rate paid may of course still be the subject of debate. We all owe a debt of thanks to the Housing Law Practitioners Association (HLPA) for the work they have done gathering data and helping to clarify this position.

The other area giving rise to concerns is family. The issue here is tied up with the work being done in connection with the Family Justice Review on the use of experts. There is concern that experts are too often being used unnecessarily and are not being asked to focus on the key issues that need addressing. The picture as to whether and in what disciplines or geographical areas the new rates are causing problems is very unclear. The Ministry has agreed to review data that becomes available in the coming months, including that gathered through prior authority applications, to try to identify problem areas. We would caution, however, that the solution that is in the best interest of the profession may lie in clear guidance on what rates should be allowed, and where, on a prior authority application rather than a general increase in rates that, in many parts of the country, may be working well to control the amount of money paid to experts.

We would also advise you to watch out for experts who pad out the number of hours they intend to bill to try to make up for the cut in hourly rates. If an expert starts charging for five hours' work to deliver what was previously delivered in three, you can expect the Legal Services Commission (LSC) to disallow part of the bill. You may want to keep to hand evidence of bills from before the imposition of the new rates in order to be able to demonstrate to the LSC that your regular experts are not doing this in the event of any dispute on this issue.

In order to build a good package of relevant data to secure the guidance and any changes to the regulations that we may need, it is important that when you are unable to secure an expert you need at the rates set out in regulations, an application for prior authority is submitted. However, it is not in our interest to swamp the LSC with applications for prior authority. If the fee your expert is charging is within the prescribed rates and the time has not changed from what you would have expected before the new rates came in, you are probably wasting your time and theirs by submitting an application and delaying the processing of necessary applications.

Please also bear in mind that this is a learning curve for the LSC as well as for practitioners, and therefore inconsistent decisions on prior authority applications will sometimes be made. This should be happening with less frequency, however, since the LSC is now processing all prior authority applications through one team in their Cardiff office - so please ensure you send all applications directly there. On appeals, although the right of appeal was removed under the 2010 contracts for non-family cases and the 2012 contracts for family cases, a new application is permitted in cases where there is further justification or additional information to consider.

The new forms for applying for prior authority have recently become mandatory. The LSC has produced guidance on completing the forms in the light of the experience of the first few months of operation. If you include too little information and the application is rejected it duplicates work for you, and for the Commission which has to process both the original application and the renewal or appeal. If you include too much, it wastes your time in completing the form and the LSC's in processing it. We therefore have a common interest with the LSC in getting the right balance.

Reporting problems

Finally, please continue to report to us where you are having problems securing experts at the new rates. It would be helpful to have details on the particular types of experts where it is a problem. This will help us to get a clear picture as to where the main pressure points are that we need to address with the Ministry and may flag up where we want to run specific data-gathering exercises to help build the case for changes.

Richard Miller, head of Legal Aid, Law Society