GUIDANCE ON CONTINGENCY FEES WHEN EXPERT PROVIDING EVIDENCE OF FACT
Following the decision in the case of Gardiner & Theobald LLP v Jackson, further guidance has been given on instructing experts in legal proceedings on a contingency (no win, no fee) basis.
The general proposition is that the provision of evidence on a contingency fee basis (giving a significant financial interest in the outcome of the case) is highly undesirable with the threat to an expert’s objectivity posed by a contingency fee agreement possibly carrying greater dangers to the administration of justice than would the interest of an advocate or solicitor acting under a similar agreement. In the Gardiner & Theobald LLP case, the court had provided guidance on how the court would determine the issue of whether to allow expert evidence to be given on a contingency or conditional fee basis with the court carefully considering the weight to be given to the evidence of an expert retained on such a basis.
In Merlin Entertainments Group Limited v Cox, the solicitors for Merlin applied to have the evidence of Mr W heard as an expert. Merlin served the evidence of Mr W following the decision in Gardiner & Theobald LLP and sought to serve it as evidence of fact, making no reference to indicate that Mr W’s fees were dependent on the outcome of the appeal. The position as to Mr W’s fees being conditional on the outcome of the proceedings only became apparent at the hearing.
The tribunal confirmed that the concerns raised in Gardiner & Theobald LLP about the duty of independence owed by an expert related not just to the opinion evidence given but also the factual and other material provided. It should have been plain that the decision in Gardiner & Theobald LLP affected experts disclosing information and giving evidence on factual issues and not simply matters of expert opinion. Whilst it is unusual for an expert to provide a purely factual witness statement and be remunerated in that capacity, where the expert uses his expertise to assemble and/or analyse factual information and data, the expert owes the duty of independence discussed in Gardiner & Theobald LLP.
The tribunal stated that there is no real difference between an expert assembling information and data to assist a tribunal in deciding an issue and an expert giving opinion evidence for that same purpose. Expert opinion evidence often depends on an expert identifying and assembling the factual material upon which the expert evidence is based. The danger of non-disclosure of relevant information, and the risk of that being influenced by the financial interest of an expert in the success of the case is common to both situations and potentially affects the ability of the tribunal to place reliance upon that expert’s evidence, in relation to either fact or opinion. The tribunal held that it cannot be right for an expert to present even purely factual evidence without disclosing to the tribunal that he is or may become entitled to remuneration dependent on the outcome of the proceedings irrespective of the precise services provided.
The effect of the decision in Merlin is that it is not possible to avoid the potential consequences relating to the provision of expert evidence on a contingency basis by arguing the evidence is only factual in nature.