Gardiner & Theobald LLP v Jackson Ltd
[2018] UKUT 253 (LC)
The issues here were summarised by the Judge in this way:
“Does the obligation to declare a success-related fee arrangement apply to remuneration not only for services as an expert witness, but also for services provided by that expert (or the practice for which he or she works) other than as an expert witness, whether before or during the currency of those proceedings? To what extent may success-related fees be compatible with an expert’s obligation to the Tribunal to act independently?”
The obvious and unsurprising answer to that question was: not at all, never. The issue arose because the firm the expert worked for had an arrangement which included success-based fees for pre-Tribunal work. The expert said that the fee for attendance at the Tribunal fell outside of any success-based fee, being the subject of individual instructions. However, this apparent split did not exclude the possibility that whilst on the one hand, the Tribunal fee was “additional”, on the other hand, the overall fee earned would depend on the “success” at the hearing. The Tribunal noted that:
“In practice, an individual expert may not consider questioning the content of the standard conditions which are regularly used by the firm for which he or she works. But that cannot override or detract from the obligations which each individual expert personally owes... All these considerations only serve to emphasise the importance of a practice ensuring that its standard terms of engagement are drafted with care and clarity so that they do indeed comply with those obligations. Furthermore, individual experts must ensure that any specific terms agreed for individual cases, whether varying or supplementing the standard conditions of a practice, also meet the same requirements.”
Whilst this case is no doubt an exception, by way of a reminder, item 2 of the formal declaration that should appear at the end of any expert report states:
“I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.“
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