The Crown Prosecution Service, (CPS), has specific responsibility for prosecution in criminal cases. Up to the point at which investigation ceases, the police authority is responsible for expenditure involved, including the cost of any medical expertise which may be sought.
Once the investigation is complete, the case is handed over to the CPS which is then responsible for subsequent spending.
If the CPS commissions the service of a medical witness, either to write a report or to appear in court, it is directly responsible for payment and enters into a contract with the doctor in the same way as any other central government department.
The fees paid by the CPS to professional witnesses and ordinary witnesses are fixed and are set out in Who pays medico legal fees.
A potential expert witness may choose whether or not to become involved in a particular case, so there is a degree of flexibility in the amount which can be negotiated for payment. However, the CPS has issued guidance covering the rates it will pay in the majority of cases.
Doctors seeking a higher rate will have to justify such amounts on the merits of the particular case, as fees are related to the expertise necessary in a particular case, not that which the individual is qualified to provide.
It is CPS policy to contact an expert witness in advance of the hearing in order to agree a fee. Unfortunately, this is not always possible, especially when hearings are listed at short notice. It is advisable, therefore, for doctors to contact the relevant CPS office in order to seek agreement on fees both for attendance at court and for any necessary preparation.
When called by the defence, a witness enters into a contract with the solicitor.
However, the solicitor will seek to pay similar fees to the CPS because in the event of costs being awarded, (either through legal aid or as a result of winning the case), the costs allowed will be limited to the amount which the LCD thinks is reasonable.
Nonetheless, doctors may wish to take account of their own private rate when proposing fees to solicitors. However, the scope for use of such fees in criminal cases is limited; nearly all cases are legally aided and very few are brought as a result of a private prosecution.
The LCD rates are set out in the section Who pays medico legal fees.
In all civil cases the doctor's contract is with the solicitor and, as in criminal cases, a potential expert witness can choose whether or not to become involved and may stipulate terms relating to the fee.
Where cases are awarded, they are assessed by a taxing officer who may use as a guide the rates appropriate to criminal cases, (issued by the LCD) although past awards in civil cases will also be taken into account.
Except in legal aid cases, the general rule is that solicitors are personally responsible for the payment of fees for work requested by them: whether or not they receive payment from the client; whether or not the client wins the case; and whether or not the costs recovered from the other side cover the full cost of the case.
Payment should ordinarily be made in the normal course of business, not at the conclusion of the case.
Many solicitors will seek to agree a contract containing the words 'subject to taxation' so that the doctor meets the difference in the agreed sum and the amount allowed. This is unsatisfactory in that it reduces the incentive for the solicitor to seek reimbursement at an appropriate level - though a solicitor may wish to use a good witness again and will want to seek a fair settlement.
The fees paid out of central funds are set out in the section Who pays medico legal fees.
Read the Law Society's Guide to professional conduct of solicitors
The guide states that 'unless there is an agreement to the contrary, a solicitor is personally responsible for paying the proper costs of any professional agent or other person whom he instructs on behalf of his client, whether or not he receives payment by his client'. This principle applies to report fees and other qualifying work, as well as witness expenses.
Under section 366 of the Insolvency Act 1986, any individual who is able to give information about a bankrupt may be required to give evidence, for which no charge can be levied. The court may also require such individuals to produce any documents in his possession or under his control relating to the bankrupt.