Experts and solicitors could be a lot clearer on costs than they would like to admit

As a litigator, I remember costs were like the unpleasant uncle who spoilt Christmas lunch. They form the backdrop to many settlement negotiations and upset clients. Something needs to be done.

It is a year since Lord Justice Jackson delivered his recommendations on cost control in civil litigation, but on 11 November he put forward further suggestions in his talk at the annual Bond Solon Expert Witness Conference. He spoke in the traditional way of a top advocate, without notes or microphone. The focus was on expert evidence and controlling costs, so the 300-strong audience was interested.

Jackson's terms of reference for his civil litigation costs review included a requirement to 'establish the effect case management procedures have on costs and consider whether changes in process and/or procedure could bring about more proportionate costs'. It is now generally accepted that case management has a valuable role to play in relation to the deployment of expert evidence. Expert evidence is discussed in chapter 38 of the Costs Review Final Report. The principal theme is that courts should make greater use of their existing power to control expert evidence, in particular by identifying the issues that experts should address at an early stage.

Jackson said: 'Many expert witnesses have expressed strong support for the above proposal. They would welcome directions given by the court at a case management conference identifying the issues upon which their expert opinion is required. Focused directions by the court at an early stage would bring two benefits: (i) shortening of expert reports; (ii) saving of costs.'

The rule committee has approved amendments to rule 35.4 in relation to expert evidence, but these amendments are being held in escrow until the general implementation date for the costs review reforms.

Jackson went on to say: 'Focusing expert evidence saves time and costs. There are numerous cases where substantial sums have been wasted because the experts '“ in good faith and with the best of motives '“ have written lengthy reports which are largely irrelevant or inadmissible.'

He suggested a modest sum spent by the parties on case management at an early stage would avoid this haemorrhage of costs. I agree that identifying the issues is key, but this does mean the instructing solicitor and the expert discussing the case in greater depth as early as is possible. By definition the expert's opinion is on areas that are outside general knowledge and he will need to educate the solicitor in the mysteries of the specialisation and advise on what are the essential issues.

Budget as in the real world

The audience then became even more attentive when Jackson suggested that there was a need for control of expert costs in advance, and that the best way to control those costs is by setting a budget in advance. He did say that circumstances may change and the budget may need to be revised, but insisted participants in litigation should at all times be working within set financial limits. This is very much like what happens in the real world outside law.

Chapter 38 of the final report recommends that judges should make greater use of their existing power (under rule 35.4 (4)) to limit the recoverable costs of expert evidence in advance. Jackson said: 'This should not put the parties to additional work or expense. It is inconceivable that either party would wish to instruct an expert witness without first obtaining an estimate of that expert's fees.'

The parties will have to include an estimate of the costs of their proposed expert evidence in their filed budgets. Effective costs budgeting will entail the expert and the lawyer together at the start making a realistic appraisal of what work the expert will have to do, how long it will take and what is reasonable remuneration for that work. If the issues have been better identified as suggested above, then clearly this will have an effect on the amount of costs.

The real problem, however, is that cases often have a life of their own, and what at first sight is straightforward becomes complex as another box of papers is delivered to the expert for comment. Experts at the conference raised this concern. Jackson said that costs can always be reviewed but it was still important to get an idea of costs at the beginning.

We shall have to see how the new rules work in practice, but I believe experts and solicitors could be a lot clearer on costs than perhaps they would like to admit.