What should I do if I am a Direct Medical Expert or an MRO and I have concerns about the terms and conditions and or payments of fees by an instructing Solicitor?
MedCo was established to facilitate the operational changes required under the MoJ’s Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents; namely, to enable the sourcing of medical reports in soft tissue injury claims. MedCo is designed to improve the quality and consistency of medical reports and to remove potential conflicts of interest by ensuring there are no financial links between law firms and the medical experts who provide advice. It is not MedCo’s function to interpret the Civil Procedure Rules [CPR], neither does MedCo have the power to intervene in breaches of the relevant rules, directions and guidance.
• Experts and those instructing them are governed by Part 35 of the Civil Procedure Rules and Practice Direction 35
• Guidance for the Instruction of experts in civil claims is also provided by the Civil Justice Council, who state at paragraph 88 that the “Payment of experts’ fees contingent upon the nature of the expert evidence or upon the outcome of the case is strongly discouraged. In ex parte Factortame (no8) [2003] QB 381 at [73], the court said ‘ we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement’.
• Guidance issued by the Academy of Experts Judicial Committee positions the instruction of experts on a contingency basis as ‘objectionable and does compromise the expert’s independence and impartiality.’
• Solicitors also must adhere to the Code of Conduct and the Principles of their regulatory body, Solicitors Regulation Authority.
It is the responsibility of the instructing Solicitor to engage ethically and ensure that the terms and conditions they apply are compliant with the relevant rules, directions and guidance.
Medical Experts and MROs who have concerns that an instructing solicitor’s terms and conditions may be in breach of the relevant rules, directions and guidance should contact the Solicitors Regulation Authority. More information on reporting to the Solicitors Regulation Authority can be found here.
