The decision in Gardiner & Theobald LLP v Jackson is useful for anyone considering retaining an expert on a “no win, no fee basis” in civil litigation, as it sheds further light on the concerns the courts will have when asked to allow such an arrangement.
Claimants often have limited financial resources with which to fund litigation. There is a balance to be struck between the public interest in full access to justice and the need to preserve the integrity of the justice system. But at what point should the necessary compromise be made? Expert evidence is frequently crucial to success but often expensive. After an initial willingness to countenance such arrangements for experts (see Hamilton v Fayed (No. 2)), Lord Phillips (giving the judgment of the court), in R (on the application of Factortame) v Secretary of State for Transport, said that it would be in a very rare case indeed that the court would be prepared to consent to an expert being instructed on a contingency fee basis. As he said, at paragraph 73:
“To give evidence on a contingency fee basis gives an expert, who would otherwise be independent, a significant financial interest in the outcome of the case. As a general proposition, such an interest is highly undesirable. In many cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case. In such a situation the threat to his objectivity posed by a contingency fee agreement may carry greater dangers to the administration of justice than would the interest of an advocate or solicitor acting under a similar agreement.”
Lord Phillips also said that a party wanting to instruct an expert on a contingency fee basis should tell the court as soon as possible. The question whether the proposed expert should be permitted to give evidence on that basis would then be determined in the course of case management.
In Gardiner, the extent to which the approach in Factortame should be applied in the Upper Tribunal (Lands Chamber) was not argued, but Sir David Holgate outlined the issues that might be taken into account in deciding that question. This is a useful insight to anyone seeking to persuade a judge to allow an expert to give evidence on a contingency or conditional fee basis in a civil trial. Three points to bear in mind are:
- The requirement to act objectively and independently applies not just when the expert is giving live evidence at a hearing, but also applies to all stages of his or her involvement in the proceedings. How does the court ensure that there will not be a lack of objectivity in any of these various stages?
- What is the other side proposing to do? Some might argue that any concerns may be reduced in cases where each party seeks to rely upon an expert remunerated by a success-related fee. Others might respond that the concerns would not disappear and the task of achieving a proper and just outcome may be rendered more difficult, and unjustifiably so.
- If such an expert is allowed to give evidence, how does the court address the inevitable arguments that would be raised as to the weight to be given to such evidence?
Above all, one thing is certainly clear. Endorsing the approach in Factortame, Sir David Holgate said that it would be “wholly unacceptable” for an expert witness to enter into a conditional fee arrangement, without that fact being declared (and in sufficient detail) to the tribunal and any other party to the proceedings from the very outset of their involvement in the case.
So, if you are thinking of instructing an expert on a “no win, no fee” fee basis, transparency is crucial. Make that fact known in proper detail to the court and your opponents at the earliest opportunity.