Employment of expert witnesses

Our prior approval is needed for employing any expert witness [Regulation 21 Civil Legal Aid (Scotland) Regulations 2002].  No specific criteria for approval are laid down in the regulations and the matter is at our discretion.

In assessing a request to approve use of an expert, we need to be satisfied that the use of the “expert” is reasonable in all the circumstances.

We will grant approval for the employment of an expert witness as reasonable where it is shown that the proposed expert has the necessary knowledge and experience; that their involvement may assist in advancing the case or its resolution; and that due regard to economy of litigation has been shown in the costs outlined.

The definition we use is that, for legal aid purposes, an expert is:

• a person whose role is to speak primarily to opinion evidence, rather than to evidence of fact alone, and who has the knowledge, professional skills, and qualifications which enable them to give such an opinion (and/or undertake relevant associated steps).

You may be using professionals for purposes not falling within the definition of expert opinion evidence. This definition does not cover witnesses as to fact generally, for whom our prior approval is not necessary.

Please select a profession from the drop down tool below for a quick reference guide on when approval is required for a particular type of activity being commissioned by you from a professional.

Our policy is that requests to employ expert witnesses must provide a fully itemised breakdown of the work proposed and likely costs. Any approval granted may include a condition that costs may not exceed a specified amount or that specified work may not be carried out.

Where we have provided approval for a report by an expert under a grant of civil legal aid, and you subsequently need to cite that expert to give evidence in the court proceedings, a further application for approval is not required for this experts’ associated costs.

In contrast, if the expert was initially approved under A&A or the report was funded privately before a grant of civil legal aid but is subsequently required to act in a proof for which civil legal aid is in place, a further grant of prior approval will be required.

Where the work being undertaken appears likely to exceed the expenditure limit initially set by us, a further application for approval must be submitted prior to the additional expenditure being incurred.

Equally, where the extent of the work approved is to be exceeded, further approval will first be required. The expert should be made aware of this.

Examples of this would be:

• where it is proposed that the expert writes a further report supplementary to the report already approved
• where it is proposed that the expert meets/ consults with the solicitor and/or counsel to discuss the report already approved and/or other issues

We have introduced templates for certain experts and mediation.  The categories covered and the maximum levels of expenditure (excluding VAT) allowed are shown in the templates which can be viewed by selecting ‘Expert & Templates’ from the ‘Create Sanction’ screen, then from ‘Type’ selecting ‘Template’.

If you use a template you do not need to send us substantial information about the case. In addition, you do not have to provide the name of the expert you are instructing.

Where there is an appropriate template, you can use it:

• for only one expert within a given category, or for mediation, where it is the first time you have applied for approval for this particular type of expert, or for mediation
• where you need approval for more than one expert in different categories of template – for example, for a gynaecologist’s report and a midwife’s report.

You cannot use the templates:

• if you have previously asked for approval for this particular type of expert/ mediation even if we refused the previous request
• where you want to get a supplementary report from an expert
• for retrospective approval.

The templates do not allow you to instruct an expert to produce a supplementary report even if you have sufficient funding left over. You need to ask us for prior approval for a supplementary report.  To do this you should select ‘Expert & Templates’ from the ‘Create Sanction’ screen, then from ‘Type’ select ‘Custom’.

General rules:

• you can use more than one template when seeking approval
• where it is your first request to instruct an expert you can ask for one expert in each relevant template category
• where it is your first request to use mediation, you can use a template
• you do not need to apply for all the experts you want for the case using the templates at one time
• if you have authority to instruct an expert report using the templates you do not have to ask us for cover for their subsequent attendance at court.

When you select the templates you are confirming that:

• the fees to be charged are within the approved level of expenditure set out in the template
• this is the first time you have applied for approval for this category of expert report or mediation
• you are complying with our guidance so far as the expert is concerned
• you are not asking for approval retrospectively
• the issues the expert aims to address are covered by the grant of legal aid.

We have not introduced templates for cases where we would need a substantial amount of information before authorising a particular type of expert’s involvement.

If the expert you wish to use is not included in the list of templates you need to ask for approval.

This is also needed when you are asking for retrospective authority.

You first need to decide whether the request is for an expert. This is because we need to approve funding for experts; we don’t need to approve funding for witnesses to fact.

There can be times when there is dubiety about whether certain witnesses should be regarded as “experts” or not.

Generally speaking, a witness may be deemed to be an expert where:

• they are consulted to give opinion evidence, rather than evidence of fact alone, on a matter arising in litigation
• they have professional knowledge, skills or qualifications which make such an opinion valuable
• they would not have otherwise been involved as a witness in the case had one or other of the parties or the court not specifically asked them to give such an opinion.

The expert does not actually have to be called to give evidence to meet the description of a “witness”.

Someone skilled and expert in their field may be cited and give evidence but does not need our sanction if their evidence is factual.

The following information may help you decide whether you need our approval for certain witnesses as experts.

Remember that even if they are not acting as experts you may need approval if the work to be done is unusual or involves unusually large expenditure

Factual witnesses

Although all witness expenses will be subject to the usual scrutiny of the civil accounts team at the accounts stage, where you want to employ someone who is only going to speak to facts about the case, they are not an expert and our approval to employ them is not required unless the cost of the work is going to exceed £3,000 meaning you need approval for unusually large expenditure.

Inquiry agents

Inquiry agents are reporting on facts as a result of their investigations.

Your client’s own chartered accountant

If chartered accountants are to be employed having had no previous engagement with your client they would be acting in the role of experts.  However, occasionally, you may want to get the evidence of a chartered accountant who is normally employed by your client to do their books.  That is not a case where approval as an expert witness is needed.

Searchers

Occasionally during civil litigation you may need to employ a professional firm of searchers to do a search in the Registers of Scotland.  These would not be classed as experts providing opinion evidence and you would not need approval.

GPs and hospital doctors 

Family doctors are not classed as experts if commenting on treatment given to your client, even though they have specialised medical knowledge not available to the layman.  Such a witness would be giving evidence on your client’s symptoms and the treatment given.  There is no need for any special authority to employ a general practitioner for work of this type.

Hospital doctors may have to speak to injuries observed by them and treatment given but they would be classed as witnesses as to fact and no special authorisation is needed for this type of report.

Medical consultants

Whether a medical consultant counts as an expert depends on whether they are speaking to treatment they have given to your client or whether they have been consulted for an opinion.  There are cases where you will obviously want to get a report from a specialist on the nature of your client’s infirmities/treatment and on the prospects for continuing disability.

In this situation, the specialist is not acting as an expert witness but giving evidence as to fact.  The opinion provided is their professional opinion as treating doctor and they can, therefore, be regarded as a witness as to fact.

Where the specialist has not been involved with the case prior to the action, they are an expert witness.

Photographers

Photographers employed to take photographs of a locus are not classed as expert witnesses.

Drug/ alcohol reports

Reports from scientists confirming if an applicant has misused drugs or alcohol are factual reports.

DNA testing

DNA tests determining paternity are factual reports.

Adults with Incapacity (Scotland) Act 2000

Where a welfare and/or a financial guardianship order is being sought in terms of the Adults with Incapacity (Scotland) Act 2000, one set of the mandatory statutory reports that need to be provided to satisfy the court that the orders are appropriate do not need our prior approval as the reports are not expert reports.

If, however, the reports will cost in excess of £3,000, then sanction for unusually large expenditure is needed.

If a further statutory report is needed because, for example, the original report has expired, then our prior approval will be needed as this is unusual work.

An approval request must be made via our online “sanction” function.

You should first make sure the issues the expert aims to address are covered by the grant of legal aid.

If you are applying for a custom approval, you should send us:

• copy of the pleadings (unless you have already sent us these and there have been no substantial subsequent changes to them)
• details of the particular expert to be instructed including their name, location and field of specialism
• detailed breakdown of the fees to be charged by the expert including their hourly/daily rate of charge and any travel costs/expenses
• details of a competitive quote from another expert where costs in excess of £1,750 are proposed.
• if the court has ordered the report, a copy of the court interlocutor should accompany the request
• if the expert report will involve examining another party to the proceedings, you need to confirm that the court has ordered this or that the other party has given their  consent
• you should confirm if the cost of the report is being shared with another party or parties or give an explanation as to why this is not possible (for example a conflict of interest). It must be clear in the application if the amount sought is a pro rata share or the entire amount for the report.

Where the employment of an expert is ordered by the court, liability for costs will be shared in the proportions ordered by the court in the court interlocutor, failing which it would normally be considered reasonable to allow for the applicant’s proportionate share of the costs.

Where reports are being jointly instructed by a number of parties with the same interest in a case, who are all funded by civil legal aid, a solicitor can elect to choose one application as the “lead” application and apply for all approvals under this lead application.

If you decide to appoint a lead application in this way, you should notify us of this by emailing merits@slab.org.uk and we will then contact you to explain the appropriate procedures.

You should, in general, ask for our prior approval once it is clear that a specific expertise is needed to advance the case.

We can, however, consider requests for retrospective approval in certain limited circumstances which are detailed below.

Regulation 21(2) qualifies the need for prior approval and allows us to consider retrospective approval for the employment of an expert witness stating that we can grant retrospective approval where:

• we would have granted the approval for an expert witness had it been made prior to their actual employment; and
• special reason is shown as to why prior approval was not sought.

The first part of the test (set out in the Regulation) is whether approval would have been granted had it been sought timeously. Our policy is to apply exactly the same test and factors to the request as if it had been received in time.

For the second part, our policy on ‘special reason’ is that where a solicitor can show that:

• they were prevented from making a timeous application for prior approval by circumstances which were beyond their control and these circumstances were ones which could not have been reasonably foreseen; or
• the circumstances were within the solicitor’s control, and ought to have been foreseen, but the oversight was nonetheless justifiable given the particular or unusual circumstances in which the expense was incurred.

These reasons will generally be accepted as a special reason for late submission of a request for an expert. Our policy is that the particular circumstances described must amount to more than simply plain oversight or ignorance of the Regulation to suffice as a ‘special reason’.

You should apply for approval once legal aid has been granted, in cases where:

• you have an increase in authorised expenditure under A&A (including ABWOR) for a report from an expert who is to be a witness
• they are required to carry out further work.

Where you are not using a template, you should:

• identify an expert with the appropriate qualifications, skills and recent up to date knowledge and experience in the specific field in which the expert evidence is needed (particularly important in medical negligence cases)
• state whether the expert is to address issues about liability, causation or quantum (reparation cases).

In choosing an expert, you must consider whether they are appropriate for the particular case in question.

It will normally be more expensive to employ an expert witness who is based at some distance from the court than a local witness.

We must be satisfied that no comparable expert is available nearer the court.

We must be satisfied that it is reasonable to sanction the use of the expert and that due regard to economy of litigation has been shown in the costs outlined.

You must make it clear whether:

• you are seeking approval only for a report from the expert
• the report is based on an examination of papers and records or an examination of the client or, for example, a site inspection
• you want authority to consult with the expert
• you want the expert to attend court to give evidence
• there is some other reason why you need to employ the expert.

If you are not using a template you should:

• explain why the expert is needed and what matters they will address in their report
• show how their involvement will assist in advancing the case or its resolution; and that due regard to economy of litigation has been shown in the costs outlined
• provide a full breakdown of the costs likely to be incurred
• for any travel costs detail the form of travel to be used
• specify any subsistence and overnight accommodation charges.

We do not pay secretarial fees, postage fees, courier fees or any other administrative charges. You do not need to include VAT when approval is sought. This is added on and paid at the Accounts stage.

If the cost of the report is more than £1,750, you need to provide competitive quotes in support of the application or tell us why this is not appropriate.

We will impose a limit on the expenditure allowed to instruct experts.  You must make the expert fully aware of that limit. They should know you have to ask us for an increased limit to allow the work to continue if it is to go over the limit.

We will pay only up to the amount fixed and you may be personally liable to the expert for any extra costs.  Where an expert has been told of the limit but it has been unavoidably exceeded, we may still meet the expert’s reasonable costs if we are satisfied that this is appropriate.

If we grant approval subject to a fixed amount of expenditure, this does not allow the expert witness to automatically claim a fee at that amount.  We require a detailed breakdown of how the claim has been calculated.

We expect to see:

• details of the time engaged on each of the main aspects of the work (such as examining papers, site visits, consultations, writing reports, travel, waiting, attending court)
• a note of the hourly or other rate(s) charged by the expert and by anyone helping them in parts of the work
• any outlays incurred individually specified
• for any travel costs, a note of the form of travel used
• details of any subsistence and overnight accommodation charges.

You do not need separate approval to cover any necessary attendance at court by that expert.

However, if you got the report before legal aid was granted you need to get approval for their attendance at court.

What should I make clear at the point of commissioning evidence and while the work is being done?

It is important to specify your instructions carefully because we will review your invoices to determine if the resulting report fails to address or departs from the instructions given by you. The same applies to how clear the professional is from the start about how we will assess final costs payable to you after invoicing has occurred.

For example, if you request an assessment of cognitive functioning or intelligence then the report will need to include information about recognised tests or assessment of these issues. If it fails to do so we may restrict or abate the outlay entirely.

What can I do to minimise the risk at payment stage?

Specify your requirements:

• the expected remit of the report should be clearly defined by you at the outset. Your instructions should make clear that the expert should seek clarification from you in writing and not proceed on assumptions if they are unclear
• it is expected that the expert/professional will be available to attend court if required. It is particularly important for the expert to bear this in mind when accepting instructions if they are based in a distant location from the jurisdiction of the court

Specify our policy on what can be paid for and how to invoice you:

• send them the practical guidance we have prepared for experts.

Provide the professional with appropriate information about the case:

• you must give the expert/professional the legal aid reference number so they can add it to their invoice and inform them of any expenditure limit
• you must tell the expert to stop work if legal aid is suspended at any point as we cannot pay for any work undertaken during a suspension period.

What is your policy on cancellation fees and how can I avoid problems?

We recognise that some experts are refusing to agree to appear to give evidence unless a cancellation fee is agreed to cover the eventuality of the case being settled or adjourned.

Here are some ways you can manage this risk:

When instructing:

It is for you to agree the terms for any work which will be carried out with the professional. However you can provide information about our cancellation policy when you commission the work.

If cancellation does occur:

• the onus is on you immediately to notify the expert if their attendance at court is no longer required. You will be responsible for settling the expert’s cancellation fee (either in whole or in part) if you fail to notify them timeously.

I have received a report and the professional has invoiced me – how can I check if there are issues I need to clarify rather than waiting until the end of the case?

Firstly, check that a full breakdown has been provided and the items meet the guidance you provided to them.

You can also take advantage of our reimbursement of outlays scheme providing it falls within the conditions explained below. We have changed our process so that we assess your outlays at the point of reimbursement to avoid, as far as possible, some of the problems that can arise waiting until the end of the case.

The outlay does not need to be paid by you beforehand, it simply has to have been incurred. However you cannot make any claim for payment in advance in contemplation of an outlay that may be incurred.

You can apply for a reimbursement of outlays subject to the following conditions:

• the outlays (either single or combined) amount to £150 or more (a combined claim can also be made for cases which commenced under advice and assistance and proceed to full civil legal aid)
• the claim must be submitted on CIV/RES form or through Legal Aid Online.
• outlays DO NOT include counsel’s fees
• the proceedings must not have concluded.

You need to attach the interlocutor to the claim when seeking reimbursement for a child welfare reporter/curator. This will prevent delays arising if we need to establish the remit of the child welfare reporter/curator.