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Legal Aid Agency wrong to refuse to pay full costs of expert’s report in private law children proceedings

Court of Appeal offers lessons for future applications for public funding of experts’ reports

In JG v The Lord Chancellor and Others [2014] EWCA Civ 656, the Court of Appeal has decided that the refusal by the Legal Aid Agency, formally the Legal Service Commission (LSC), to meet the cost in full for an expert report ordered for a child in family proceedings, was unlawful.

The LSC had agreed to pay only one-third of the fees on the basis that the child's parents, who were parties to the proceedings, should pay the balance.

The case concerned the funding of expert reports in private law children cases, and was an appeal, on behalf of the child, from the order of Ryder J (as he then was) of 09.04.13 made in judicial review proceedings. The original judicial review was also brought on behalf of the child, in respect of the LSC's refusal to fund the whole of the costs of an expert instructed to assist the family court in deciding the welfare issues in the case. In the judicial review proceedings, Ryder J decided against the child. He also considered what was described as "a question of general importance", formulated by the Law Society who had intervened in the judicial review proceedings, concerning the approach that could be taken where the family court considered that expert evidence was necessary, but the only means to pay for it was through the child's public funding certificate.

Black LJ decided the appeal on the basis that the order for an expert assessment had been made at the instigation of the Children's Guardian; it had not been as the result of "a joint enterprise of all the parties"; and the order was not "a device to overcome the parents' inability to contribute to the expert's fees… The essential question was who was seeking the instruction of the expert…".  She concluded that it had been the Children's Guardian, who sought it as part of the case on behalf of the child, so it was right to say that the child's public funding certificate should pay the whole of the cost.

She concluded with a declaration that the LSC's decision not to meet the cost of the expert's report was unlawful. However, she also said:

"131. Having reached my decision on these very fact specific grounds, it is not necessary for me to look at the wider issue of legitimate expectation and I do not propose to do so.

132. I would simply add that when judges are called upon to deal with the sort of difficult issues that have arisen here, it would be prudent for them to explain their reasons for each decision that they take in a short judgment and for their orders to be precisely spelled out. 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 an expert."

So, we need to be careful how lawyers apply this judgment, and be very clear regarding who is applying for an expert assessment, and why (in terms of how it supports their case). We also need to ask judges to provide short judgments setting out their reasons when they order an expert assessment, if there are issues about its funding.

This is a helpful reversal of the previous High Court decision which had caused so many practical problems in the funding of experts and their reports in both private and public law. It is a judgment expressly limited to the facts of that case but even so has helpfully clarified that if it is the court that determines that the report is required and it is the court that is seeking the expert evidence, then it is for the court to determine who funds the report. This means the court can decide that one party, usually the child, can fund it all from their certificate. We all need to ensure that we prepare fully for hearings where judges will make decisions about experts' reports and funding by following the PD closely, thereby giving the judge sufficient information and guidance to be able to make decisions and findings which are recorded on the face of the order that the report is necessary for the court to determine issues [X,Y and Z] and that in all the circumstances the cost of the report should be funded by [A,B or C].

James Turner QC of 1 King's Bench Walk and Stephen Chippeck of  5 KBW (instructed by Pearsons Solicitors) represented the appellant. Paul Nicholls QC and Tom Cross both of 11 KBW (instructed by Legal Aid Agency) represented the  respondent. John Howell QC of Blackstone Chambers (instructed by The Law Society Legal Service Team) represented The Law Society, which intervened in the proceedings.

The judgment, prefaced by a summary by Lily Mottahedan, is here.

David Emmerson and Maud Davis, partners, TV Edwards

23/5/14