Can I increase fees in a long-running case - and how should I go about it?

Q. I have been involved in a long-running high cost negligence case. This has now gone on for several years. In the meantime my fees have increased for all new cases I have taken on. Am I permitted to raise my hourly rate and other fees such as Court attendance above those originally agreed at the start of this case several years ago, to match my current rates? Or, in the alternative am I have restricted to using these historical hourly rates?

A.

The question raises a key point of general application: experts should make sure their T&C’s reserve the right to vary hourly rates from time to time, with notice - especially as UK inflation is no longer benign. Clients may seek to fix initial rates for a period, but that period can be negotiated, or constrain the rate by which hourly rates can increase (eg no more than the rate of inflation), and that too can be negotiated.

If you do not have a clause in your T&Cs reserving the right to vary your hourly rate from time to time you could contact your instructing solicitors and negotiate an increased hourly rate, particular taking into account that the case has gone on for several years.

Your T&Cs should have a review clause in them, e.g. that they are valid until a specific date and will be reviewed, not necessarily changed after that time. You should also have a clause that rates are subject to review and may change after that time.

If the case proceeds normally there is a cost budgeting exercise that good solicitors ask the expert to fill in (Precedent H –you can view and download this at https://www.ewi.org.uk/Knowledge-Hub/Your-Expert-Witness-Practice/Cost-Budgeting . You will see that there is a space for contingency which is where you might include unrated fees for specific items later in the case at that point.