Retrospective requests for the approval of Expert Witnesses – the “special reason” test

It is possible that we may approve an expert’s employment retrospectively but there is a twofold test set out in the Regulations which we must apply.

  1. We will assess the application using this guidance as if work is still to be done. If we would have refused the application had it been made before the work was carried out then we will refuse the application.
  1. Where we would have granted the application if it had been made before the work was carried out, we need to be satisfied that a ‘special reason’ has been given to explain why prior approval was not requested.

There is no definition of special reason in the legislation but we will normally grant the application if:

  • you can show they you were prevented from making a prospective application because of circumstances beyond your control and these circumstances were ones which could not have been reasonably foreseen
  • you can show there were circumstances within your control, which ought to have been foreseen, but the oversight was still justifiable in the particular or unusual circumstances in which the expense was incurred.

We will refuse the application:

  • if you tell us that you just forgot to ask for prior approval. We do not regard this as a ‘special’ reason.

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