Types of medico legal witness and work

Ordinary witness

This is someone who sees an incident take place, e.g. someone witnessing a robbery or road accident. Doctors acting in this capacity do so as members of the public. You can only claim out-of-pocket expenses for court attendance and may be summoned to attend court.

 

Professional witness

This is someone who gives evidence from knowledge obtained in a professional capacity, and whose evidence is confined to matters of fact (e.g. doctor giving evidence on treatment given to the subject of the proceedings).

You can also be asked to attend court, although there is an agreement with the legal profession that this should be avoided if possible. If a professional witness is paid by the Crown the fees are limited by the Lord Chancellor's Department (LCD) or Crown Prosecution Service.

For more information doctors should contact either the CPS or their instructing solicitor.

 

Expert witness

This is someone specifically called in by one side or the other to interpret the facts using his/her clinical expertise (usually a consultant or other specialist). Fees are paid where a doctor is engaged to give expert evidence and opinion. In these cases, unless the doctor is appearing for the prosecution in a criminal case, a contract is made between the doctor and the solicitor in which levels of fees are agreed. All fees should be agreed with solicitors before any work is undertaken. No-one can be summoned to act as an expert witness or to give an expert opinion; but a doctor who has already agreed to act as an expert could then be summoned to give professional evidence.

 

There are three elements to the work of an expert:

• providing one or more reports
• time spent qualifying as an expert in the particular case
• court attendance

Use our terms and conditions template letter to instructing solicitors

This information has been compiled to help our members who wish to enter or undertake further work in the expert witness field. It takes account of law reforms relating to the preparation of medical reports and the guidance currently available to experts in both the civil and criminal fields.

It is also acknowledged that changes have taken place in the personal injury market which have had an impact on the way in which reports are prepared for the fast track personal injury cases, ie those where the value of the claim is under £10,000 and which generally do not go to full trial (reference 1) in the guide.

Most recently, the committee agreed that the guidance should also incorporate the current position in Scotland and Northern Ireland.

While this information is aimed at doctors, it is recognised that the generic duties and responsibilities of experts (to the court) remain the same for all professions in both civil and criminal fields of litigation. The importance of adhering to both the Civil and Criminal Procedure Rules and their associated Practice Directions is emphasised.

Issues relating to the commercial aspects of running a medico-legal practice, such as obtaining work as an expert witness, the setting of fees and issues around remuneration are beyond the scope of this guidance. Information on these subjects should be sought through the expert witness registration/training bodies, such as those identified in section 5 (reference 2) of the guide.

It is also strongly recommended that BMA members gain relevant training before embarking on expert witness work. This will help to clarify issues such as the different requirements of criminal and civil courts; the distinction between single and joint expert witnesses and variations that may exist in law throughout the UK.

This information will be updated as and when new guidance is issued. Please note that this document is for guidance purposes only and does not constitute legal advice.

 

Read our guide to being an expert witness

See Medico-legal index

Criminal cases

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.

 

Civil cases

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.

 

Insolvency cases

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.

Medico-legal fees paid by CPS

Ordinary witness allowances
a) Subsistence allowances:
Attendance not exceeding 5 hours	£2.25
Attendance exceeding 5 hours but not exceeding 10 hours	£4.50
Attendance overnight in London, Birmingham, Manchester, Leeds, Liverpool and Newcastle upon Tyne	£95.00
Attendance overnight elsewhere	£65.00
Night subsistence allowance	£21.00
Personal incidental allowance	£5.00
Ordinary witnesses who stay with family or friends will receive in place of the above a single payment	£25.00 (night subsistence allowance)
b) Loss of earnings by employed persons:
For an absence from work not exceeding 4 hours	£33.50
For an absence from work exceeding 4 hours	£67.00
c) Loss of earnings by self employed persons:
For an absence from work not exceeding 4 hours	£42.95
For an absence from work exceeding 4 hours	£89.50

Professional witness allowances
a) Attendance overnight:
London, Birmingham, Manchester, Leeds, Liverpool, Newcastle upon Tyne		£85.25
Attendance overnight elsewhere		£65.00
b) Compensatory allowance:
Absence from practice/residence for up to 2 hours		£83.50
Absence from practice/residence between 2 and 4 hours		£117.00
Absence from practice/residence over 4 hours		£234.00
Or  as a locum you can claim c) Locum allowance:
Absence from practice for up to 2 hours		£89.00
Absence from practice between 2 and 4 hours		£125.00
Absence from practice over 4 hours or where locum necessarily covers more than 4 hours		£250.00
Expert witness allowances		Contact your CPS area office for advice
Expert witness fees are not fixed, the fees is negotiated for each attendance.
Mileage rates by agreement with the BMA		45p per mile or 25.4p per mile for motorcycles
Effective date for above fees 15 September 2008

Medico-legal fees paid from central funds

Request for a medical report Under section 32 (2) of the Criminal Justice Act
Consultants up to 2 hours' work see further note 1			£74.80
Consultants more than 2 hours' work (daily maximum) see further note 2			£298.25
Other doctors up to 2 hours' work see further note 1			£52.80
Other doctors more than 2 hours' work (daily maximum) see further note 2			£211.00
Examination and reports to determine fitness for detention centre training
All registered medical practitioners			£32.50
Effective date for above fees: 6 May 2003

Why are some fees paid from central funds?

The Lord Chancellor's Department (LCD) fees are paid when it has been decided that the costs of a defence or, more rarely, a private prosecution, at a magistrates or crown court should be met by the taxpayer, ie central funds.

This would occur when a defendant is awarded costs by the court or when a legally aided case reaches court and costs would normally be paid at the end of proceedings.

However, in Crown Court cases, if a solicitor is given 'prior authority' by the Legal Services Commission to seek a report and the bill is more than £100, he or she can seek immediate payment on account. The court would notify the witness that such a payment had been made. (Source: 78 of 2003 and DL 136/155/1)

 

Further notes to fees table

Note 1
This would, in practice, be restricted to cases where the offender was perhaps already known to the consultant, with the report being held from information on file.

Note 2

The higher prescribed fee of a daily maximum is paid where more than two hours' work is necessarily undertaken and this will be in the vast majority of cases.

Consequently, where a consultant reasonably undertakes work in preparing a written medical report over more than one day, for example, attending upon the offender one day and writing up the report on another, the court may pay an allowance not exceeding the daily maximum for each day the work was done.

This is in addition to any travelling expenses which may have been reasonably incurred.

(Source: Letters 23.3.98 and 25.3.99 from W Withers, Lord Chancellor's Department)

Note 3

Fees for professional witnesses, expert witnesses and ordinary witnesses are discretionary and paid for by the Crown Prosecution Service.

 

Legal aid

Where a solicitor is acting for a client under the Legal Aid scheme, the solicitor will not ordinarily receive any costs until the case is completed. The solicitor will also normally have his bill 'taxed' by the court or assessed by the Legal Services Commission. This can result in the amount claimed for reports and witness court attendance being reduced.

Hence a solicitor may ask a doctor to accept such fees as allowed on taxation or assessment.

In civil, and occasionally in criminal cases, the solicitor can seek prior approval before requesting a report or requesting the attendance of a witness. If the fees are authorised by the Legal Services Commission there should be no obstacle to the solicitor paying the costs of the professional's services. The Commission also has the power to make payment on account.

Doctors are therefore encouraged to consider the factors they need to take into account in setting their fees for this work prior to entering discussions with solicitors for legally aided work.

 

Taxation of solicitors' fees

Income tax must be paid on solicitors' fees in the year of invoicing even if solicitors do not pay on time or at all. Some practice managers now issue a standard letter informing the solicitor of the fee and promising a reply, by return, on receipt of the payment. The BMA does not have a policy on this practice and recognises that it is up to individual practitioners to make their own arrangements for billing and recovering outstanding debts.

 

Disputes

Where a dispute arises over payment of fees, each solicitor should have a complaints procedure for resolving such problems. Unfortunately we understand that the Office for the Supervision of Solicitors no longer deals with such cases. Hence doctors may have to resort to the small claims court to ensure the payment of their fees.

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