Witness compensation: Cab, please!

Some of you may have noticed the downfall of 1970’s DJ and Top of the Pops presenter Dave Lee Travis. As if his conviction was not bad enough he was recently reduced to arguing through his barrister to recover taxi fares, on the basis of a combination of a back problem and being left penniless by the costs he incurred unsuccessfully defending himself. Apparently he’d racked up £4,500 on taxis during his trial and wanted this paid out of state coffers as part of his costs of attendance.

So what’s this got to do with construction law? Well a little more than meets the eye. The basis for and permitted allowances for witness attendance at trial all come from the criminal side of the legal system, Crown Court trials. The same principles and allowances are then applied to the civil side of the system, including in the courts which determine construction disputes. It is arguable that they should not be derived from the criminal process and it is certainly arguable that the allowances are unrealistically low. Indeed they effectively compensate only at or around minimum wage or living wage levels.

In summary, the rules say an employed witness can be compensated at an amount of £33.50 for up to four hours and up to a daily maximum of £67 - for a self-employed witness that rises to £42.95 for up to four hours and a daily maximum of £85.90 - plus reasonable travelling and subsistence expenses per day. Different rules apply to professional witnesses, who are paid roughly double that of a self-employed witness.

Witnesses are entitled to travel expenses, such as standard fares on public transport, 25p per mile by car, and taxi fares in case of emergency, infirmity or where this is the only form of transport available

If you take the daily allowance and divide by any reasonable number of hours spent, it is apparent that the allowances are pretty much minimum wage territory, or at best living wage territory.

Witnesses are also entitled to travel expenses, such as standard fares on public transport, 25p per mile by car, and taxi fares in case of emergency, infirmity or where this is the only form of transport available. They can also claim 20p per mile by bicycle, so while the allowances may be low they are at least in part eco-friendly. But 25p a mile by car is way below the normal levels permitted for corporate vehicle use.
Subsistence allowances are also paid at £2.25 (for an attendance not exceeding 5 hours), £4.50 (5 to 10 hours) and £9.75 (exceeding 10 hours), so there were no trips to The Ivy or similar hostelry for Mr Travis whilst his trial proceeded.

While I appreciate nobody wants anyone profiting from giving evidence, it does nothing for the interests of justice for witnesses to be disinclined to give evidence on the basis they will positively lose out. Yes, you can subpoena a witness and force them to attend paying the allowances but that process itself costs money and court time which could arguably be better spent properly reimbursing the witness in the first place. Nobody wants to subpoena a witness unless it is unavoidable or if the witness asks to be made subject to a subpoena so that they can get time off work. It creates an extra tension and hostility in a process which is likely to be tense enough for the average witness.

While I appreciate nobody wants anyone profiting from giving evidence, it does nothing for the interests of justice for witnesses to be disinclined to give evidence on the basis they will positively lose out

It is not as though with modern information and record systems, a more realistic and fair basis could not be arrived at. Solicitors should be perfectly capable of assessing whether the information given by a witness is good enough to justify an amount of compensation. After all if their client wins, they will want to recover that cost and therefore it will be scrutinised by the other party.

The position is not helped by certain websites perpetuating the myth that a witness can be paid for attending court. I have seen the expression “a sum representing compensation for witness’ loss of time”, which is wrong and misleading. They cannot currently be paid on that basis. They can be paid the amounts noted but not paid their loss of time as such. If a witness is paid more than they are entitled to, not only may this be a breach of the solicitors’ ethical code, but the impartiality of the witness may then be called into serious doubt.

Of course this is not really “compensation”. It is frequently a substantial loss for the witness or their employer as against what they would ordinarily earn. Not all witnesses are clocking up £4,500 on taxis and then expecting someone else to pay for it. If we want witnesses to support the court process we might need to do a little better than paying less than the minimum wage.

James Bessey is a partner in the construction, infrastructure and projects department at DWF