Specialists are often instructed in the course of litigation to provide expert reports and give expert evidence in court. A party who has instructed an expert and is successful in a litigation will of course want to recover the expert’s charges from their opponent, but court rules stipulate that these charges can only be recovered if the court has certified the expert as being a “skilled person”. Important changes came into force in April 2019 meaning that the courts now have to become involved in scrutinising the instruction of experts at a much earlier stage in the court proceedings.
The most significant change introduced by the new Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 concerns the point at which certification is required.
The default position is now that the court must be persuaded to grant certification before any work is carried out by a skilled person. If certification is not obtained in advance, then a party will not normally be able to recover the expert’s fees for that work.
Previously, certification would normally only be sought at the end of an action long after the skilled person had prepared their report and given evidence.
For those providing expert reports, this change will mean that a party may not be able to commit to providing background material and formally instructing a report until the court has approved the expert’s involvement.
Note that prior certification will not be required in simple procedure matters nor in most personal injury cases. Certification will still be needed in these cases but can be obtained from the court at the end of the court action.
The 2019 Rules do however provide a mechanism whereby certification can be granted retrospectively in certain situations.
If certification is sought after an expert has already carried out work then the court must be satisfied that the party seeking certification has shown cause for not having applied for certification in advance. Only then will the court order that the certification can include the earlier work.
What qualifies as “cause shown” will depend on the particular circumstances of each case.
Where a report has been instructed before court proceedings commenced to allow for compliance with a pre-action protocol or to establish a basis for the claim a court may subsequently have little difficulty in agreeing to retrospective certification.
Similarly, a court may be persuaded that the circumstances meant the expert needed to be instructed urgently without waiting for formal approval.
Reasonable and proportionate
In order to be satisfied that an expert should be certified the court must be satisfied that they are a skilled person and that it is, or was, both reasonable and proportionate to employ them.
It may be relatively easy to show that it was reasonable to employ an expert, but we will have to wait and see whether the explicit reference to proportionality in the new rules will result in the courts taking a greater interest in the level of fees an expert intends to charge.
The requirement to seek certification of an expert before they are instructed in court proceedings is a significant change of approach.
It remains to be seen how the courts will deal with applications for retrospective certification but there is no doubt that failure to seek certification in advance could well prove costly.