Who is responsible for paying Expert Witness fees?

A much misunderstood point is that, irrespective of whether the Expert’s Fees are being met with public or private funds, the Expert Witness’s contract is with the instructing party(s).

In Publicly funded cases, where the client is entitled to Legal Aid, it is up to the solicitor/instructing party to recover your funds from the Legal Aid Agency (LAA) on your behalf as under the current LAA contracts the Expert Witness has no right to recover payment directly from the LAA. This is under review and there has been discussion about a pilot where the LAA would make payment directly to Expert Witnesses in exceptional cases but no firm plans have been published. This means that Expert Witnesses need to consider things such as the instructing party(s) ability to pay, including the increasing risk of firms of solicitors going bust!

In Privately funded cases we would recommend that, before you accept any instructions, you insist the solicitor confirms they are “in funds” i.e. they are holding monies on behalf of their client to cover your fees.  This is common practice and gives you an additional level of confidence.  It is also important to ensure that you have robust Terms and Conditions that include things such as a “Joint and several liability” clause.  This effectively means that, if the end client does not pay your fees, then you have the right to pursue the instructing solicitor for them.