Before you spend hours seeing a Claimant, going through the history, examination, records & images, and deliberating on your opinion, you want to make sure that you have an understanding with those instructing you about the terms of your engagement.
The following is a useful starting point, setting out the process and what should be agreed: https://www.judiciary.uk/wp-content/uploads/2014/08/experts-guidance-cjc-aug-2014-amended-dec-8.pdf
The time will come when a solicitor doesn’t pay up, or wants to delay payment until the end of the case – which in some cases could be years away. Without a contract showing the terms you have been engaged on, who is to say what the agreement originally was?
If you have agreed such delayed payment terms at the start – all well & good, but you may not be amused to be faced with this proposal after the event.
Every medico-legal expert should have a Terms & Conditions document. This forms the basis of a contract between the expert and those instructing her/him.
You should get the agreement signed by instructing solicitors ahead of working on the case (by an authorised signatory of the firm). You may be challenged by the solicitor about the payment terms. You will have to decide beforehand how much you are willing to concede in order to gain business. It never hurts to have a strong initial position from which to negotiate however. Don’t forget that solicitors will almost always be a better and more experienced negotiator than you are.
I have set out below some key issues you may wish to consider including in your document. [Note: this has not been written by a solicitor and it is not intended to be an exhaustive list. If you use this, you do so at your own risk].
- A date from which the terms and conditions are stated to apply, and a statement that work undertaken will be according to these terms and conditions unless specifically varied in writing beforehand
- A provision to allow you to issue updates to the terms from time to time, say annually, e.g. revisions to amounts charged
- after invoicing, the point at which the fee becomes payable, whether that is immediately; after a certain number of months; or at the conclusion of the case either by negotiation or by a court judgement
- An hourly rate for the expert’s work. Lawyers often charge in units of tenths of an hour, and will understand if you do the same
- Whether VAT is payable on invoices
- If a fee is given for a ‘standard report’, be clear what you consider to be a standard report, and perhaps an example of what is not considered to be a standard report (multiple injuries?)
- will you charge for addenda, if an A4 box of notes or 5 imaging discs arrive 3 weeks after you have sent the report?
- Will you charge for amendments necessitated by the error of another party?
- What will your policy be for failures to attend appointments?
- Does your hourly rate apply to: correspondence; reporting on the result of investigations; reading & research; considering and reporting on other experts reports etc.; preparation; joint reports; conferences with counsel; drafting & checking and other work? If not, how will you charge for these?
- What about the cost of obtaining references/publications for exchange? Will you charge, or absorb the cost?
- Will you charge the same or a different rate for traveling to examine the Claimant in their home, to attend a conference with barristers, or to attend Court?
- What is your fee for a day’s Court Attendance?
- Who pays for debt recovery costs?
- What happens to the amount owed to you, if the Claimant changes solicitor? Should it be paid on transfer, unless the second solicitor agrees your terms from the date of the original invoice?
- Will you accept instructions from litigants-in-person? Think carefully about the implications of this.
- Will you undertake Single Joint Expert instructions? In this situation you are the only medical expert, and in fulfilling your duty to the Court you cannot please both parties. Either can start an action against you.
- You must not take part in conditional fee agreements (CFA)! In other words, your fee or the amount of your fee should not be dependent on the outcome of the claim. You will be severely criticised if you do this, and could be referred to the GMC. Make it clear you do not get involved in this.
- You should state the jurisdiction under which any claim arising from your work should be decided.
- Instructions from overseas – will you accept them? Will you insist on payment before delivering the report? Will you accept local currency or only GBP? Who pays for bank fees & currency exchange – which in certain places can be significant? You may not receive such enquiries early on in your medico-legal career, but it still worth thinking about these issues before you do.
Another style of Terms & Conditions document has come to our notice, and a link to it is enclosed with the kind permission of Mr Laurence Newman/The Surgeons Chambers, whose document it is:
Summary: It is a little extra trouble to make a Terms & Conditions document and use it, but one day you’ll be glad you did. Remember: a verbal agreement isn’t worth the paper it’s written on.
Don’t undersell yourself. If you do, soon you will find that you resent the time you are spending on the work, with inadequate recompense. The result is that either you stop, or you don’t give the work the attention it needs.