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  5. Court of Appeal verdict on children's expert fees: analysis and implications for practitioners

Court of Appeal verdict on children's expert fees: analysis and implications for practitioners

21 May 2014

The Court of Appeal has ruled that the Legal Aid Agency (formerly the Legal Services Commission) acted unlawfully in refusing to pay in full for an expert witness report ordered for a child by the family court.
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The case of JG v The Lord Chancellor followed the LSC's refusal to pay more than one-third of an expert's fees because it believed that the parents should have been required to pay the other two-thirds.

The LSC's decision was based on section 22 (4) of the Access to Justice Act 1999 which states that any rights conferred on to a legally aided party shall not affect the rights or liabilities of other parties to proceedings. The LSC argued that costs cannot be awarded against one party simply because they benefit from legal aid.

In 2012, the High Court invited the Law Society to intervene in a judicial review application which was brought by a solicitor's firm in Kent following an original county court decision in 2009 to ask for the legal aid budget to pay for an expert report ordered on the child's behalf, because the case raised issues of public importance. Following the Law Society's intervention the justice secretary also intervened.

The judicial review hearing was before Mr Justice Ryder in October 2012. His judgment was handed down in April 2013.

That decision was appealed. The Court of Appeal hearing was on 11-12 February 2014.

The Law Society intervened in the case because it raised a 'question of general importance' (general question) about the lawfulness of the LSC's actions.

The Court of Appeal commented today that:

'Nobody can be in any doubt that the general question encapsulated a real issue of very considerable importance in private law proceedings relating to children in the wake of the severe restriction on public funding for those involved in such proceedings.'

Implications for practitioners

In making the ruling Black LJ, supported by Fulford LJ and Richards LJ, expresses the court's misgivings about judicial review proceedings being used to consider a general question which she described as abstract, with the result that the court's comments on the general question are described as obiter, and do not form part of the ratio of the court's decision on the facts of the specific case.

Nevertheless, the ruling has important implications for the family court.

In commenting that there is 'no universally applicable answer and that everything will depend on the facts of the case under consideration', the judgment means that in future the Legal Aid Agency must look at the facts of a specific case rather than adopting an absolute refusal to pay the fees in full.

An expert report ordered for the child alone

On the general question, the court recognised that there is no requirement for there to be a single joint expert (SJE) although it may be ordered. Referring to rule 25.11(1) of the Family Procedure Rules (FPR) it said the court's power to direct the use of an SJE arises 'where two or parties wish to put expert evidence before the court on a particular issue'.

While the court recognised it may not always be easy to determine which way the facts fall in relation to this rule, it accepted that an expert may validly be sought by one party alone.

Using the facts of this case as an example the court said that the correct starting point was that the expert's report was genuinely sought by the child alone, with the result that it was legitimate for the legally aided party to bear the full cost.

The court rejected the Lord Chancellor's contention it was 'a contrivance' to treat the expert as an individual expert rather than an SJE in these circumstances. The ruling refers to rule 25.2(1) of the Family Procedure Rules, which states that an SJE is someone who provides expert evidence on behalf of two or more of the parties.

The rules explicitly acknowledge that parties may communicate with and even take the benefit of an expert instructed by another party without that expert becoming a SJE. Indeed, the ruling goes on to say that it would be counter-productive if the other parties were deterred from contributing to the process for fear that participation may make the other party's expert an SJE.

The Law Society's evidence had been that parties should and could not be forced to pay in these circumstances.

Black LJ comments 'it seems to me that it may not be all that infrequent that an application by a child/guardian for permission to instruct an expert will genuinely be for an expert on behalf of the child, as opposed to a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court and into the format of the expert's instruction. Section 22(4) will then present no obstacle to the cost of the expert being met by the child's public funding.'

Apportionment of fees

The judgment is at pains to set out the 'normal' course of events, from which a departure might fall foul of the legislation. The court referred to the normal order as how the court should apportion costs between parties for a joint report, where this is no issue as to financial resources.

Even where the instruction is of a SJE, there is no general principle of equal apportionment even where there is no issue over resources, such as the parents' ability to pay: 'it all depends upon the particular circumstances of the case' says the judgment. Black LJ comments; 'Indeed, I would not even go so far as Ryder J in the instant case when he spoke of 'the principle of equal apportionment in joint expert cases.'

The judgment says that apportionment is a matter of discretion for the court considering the particular circumstances of a case. In coming to this conclusion the court referred to three authorities (Calderdale MBC v S and the LSC, A Local Authority v DS and London Borough of Lambeth v S) highlighting their consideration of a range of factors .

The parents' ability to pay

The court then considered when it could depart from the normal order. The judgment notes that the Law Society and the Lord Chancellor agreed that this could be the case when one or more of the parties cannot pay. It will depend on the facts at which stage a determination to depart from the normal order is made but the court accepted the importance of not delaying this determination.

The judgment observes:

' A particular concern of the Law Society was that the assessment of impecuniosity should not delay the proceedings: They were right to be concerned about that.'

The judgment notes that it is difficult to forecast what financial information will be available to the court and at what stage in proceedings, and therefore in some circumstances 'there is no option but to adopt the Law Society's solution of requiring the guardian to instruct the expert in the first instance, but with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order'. The court describes this option as having 'considerable appeal' but again, this will depend on the facts.

The child's human rights

At this point, the child's human rights come to the fore.

Where the court has approved the necessity of an expert report, there is a 'strong foundation' of a breach to the child's articles 6 and 8 rights if expert assistance could not be provided, but the court stopped short of saying in all cases it would be a breach. Black LJ comments:

'I wondered during the course of the hearing whether, in the light of the Elsholz case, where the family court has concluded that a report is 'necessary' within the meaning of rule 25.1 of FPR 2010, and where no other party can fund the report, a failure of the state to fund the report through the child's public funding would inevitably involve a violation of Article 8. I concluded that it was not possible to go that far because the circumstances of individual cases differ so considerably and one cannot reliably foresee all the variants.'

Although the Lord Chancellor's case referred to the parents' Article 8 rights, the court said that the family court is searching for what is in the best interests of the child, irrespective of the parents' cases. Black LJ observed

'The Lord Chancellor's argument seems to me to risk prejudicing the child in order to prevent a parent who is not otherwise entitled to legal aid deriving a benefit from a report which has been paid for by public funding.'

'the conclusion to which the Lord Chancellor's submission would logically lead [is] that even though the child's convention rights would be violated by the inability to obtain the expert advice that the court had concluded was necessary to assist it, the expert could not be paid for on the child's public funding certificate because that would benefit one or both of the parents as well.'

The specific case

The court did not share Ryder J's view that the 2009 order for the instruction of an expert fell foul of s22(4). The essential question was who was seeking the instruction of the expert, to which the answer was the guardian. Black LJ therefore allowed the appeal against Ryder J's dismissal of the child's judicial review claim and substituted a declaration that the LSC's decision not to meet the cost of the expert's report was unlawful.'

Prior authority

The final word in the judgment is for solicitors:

'It goes almost without saying that solicitors should be careful to avoid disputes of the type that has arisen here by seeking prior authority for any instruction of a expert.'

It remains to be seen how the LAA will respond to the judgment and how it will greet any increase in prior authorisation requests from solicitors instructing experts. It is possible that the Lord Chancellor may seek leave to appeal to the Supreme Court.

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