Page 26 - PIC-Magazine-Issue23-Autumn-Winter-24

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We haven’t permission to
get an Expert report but...
A legal professional can legitimately outsource the preparation of a Schedule of Loss of Net Earnings / Income / Pension to their preferred forensic accountancy firm, on an agency basis, with the resultant costs recoverable as time costs rather than as a disbursement.
In this way, they should be able to get the required specialist input just in a different format.
The insurance team at Forths have been providing this service to our clients for in excess of 15 years and, because of the issue noted above regarding sanction from the Court for Expert accountancy evidence, a significant number of instructions are received on this basis over the normal course of business.
It is a great way for firms to access our industry leading skill set on relevant cases, in a cost effective and just as importantly, cost recoverable, manner.
The Schedules are prepared with the same diligence as our Expert reports (in fact by the same team) and our active involvement in the discovery process ensures that all relevant available information is obtained to support the claim as presented, in exactly the same way as would be the case on Expert instructions.
In terms of reporting format, this is akin to what legal professionals would recognise as a ‘normal’ Schedule of Loss of Net Earnings / Income / Pension, rather than an Expert document.
It is the case, therefore, that all is not lost if you require input on one of your cases but the Court has said no.
We would be delighted to speak to you should you require a more in depth explanation on this innovative service.
n the dim and distant past before Gen Z, craft gin and social media, it was almost possible to get permission from the Court to sanction formal accountancy evidence on any case that Claimant solicitors saw fit.
From a parity of arms perspective, the Court then often also saw fit to allow the Defendants to requisition their own accountancy evidence in response.
It was this relative ease that led
to the exponential growth in the utilisation of forensic accountants in injury cases of all types and the subsequent significant expansion of the forensic accountancy marketplace as a whole.
The consequence of this, from a procedural perspective, was an increase in complexity of a number of cases which perhaps did not need to be complicated and, from a costs perspective, the obvious increase in disbursement costs across the case.
This situation was one of the contributing drivers for the initial tranche of the Woolf reforms, after which there was an increasing reticence from the Courts to allow Expert accountancy evidence
to be adduced, with the often referred to rationale being that the formulation of loss of earnings, loss of dependency and loss of pension claims was something that should be capable of being undertaken by competent fee earners at firms.
Whilst the Court’s rationale, as noted above, could be said to be
reasonable for the more basic loss of earnings calculations, the reality is that for many scenarios, particularly those involving self employed people (and the multiplicity of different ways that such individuals conduct their businesses), fee earners at
firms were not suitably equipped to prepare robust and substantiated calculations.
This is of course exactly the reason why they originally started adopting the external services of forensic accountants to assist them on the claims that they were working on.
The initial implementation of the Woolf reforms is now obviously a period of development in the civil litigation environment that is in the dim and distant past but the reticence from the Courts to allow Expert forensic accountancy evidence continues to the present time.
From discussions with clients this
can cause real issues in the accurate quantification of relevant heads of claim, particularly as referred to above when people are self employed or have other complexities to their earnings profile.
So, essentially, there is a conundrum, on one hand fee earners may
require assistance to help them optimise their client’s loss of earnings claims but, on the other hand, they cannot formally
appoint an Expert, as the evidence will not be permitted to be adduced and the costs cannot be recovered from the other side.
In these situations, what is the answer? In short, White Labelling or agency work.
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