The decision in J (A Child: Care Proceedings: Apportionment of Expert’s fees) [2017] EWFC B49 is mainly concerned with how to ensure the court gets help from expert witnesses now that their fees are subject to pretty stringent caps by the Legal Aid Agency (LAA -formerly Legal Services Commission or LSC)

I set out the discussion about hourly rates and apportionment of fees below; its pretty dry stuff but horribly necessary. It is clear that we live in a society now where a decision by the court that an expert’s opinion is ‘necessary’ is a decision that can be thwarted by a branch of the government that has set the level of acceptable rates for expert pay. It is possible to argue that your expert should be paid more but only in ‘exceptional circumstances’.

Matters were complicated here by both parents refusing to instruct lawyers and thus take advantage of the non means non merits tested public funding they would get.

If all the parties had lawyers the costs would probably be split 4 ways – in this case the court had to split them between the LA and the guardian. This does in fact reduce the burden on the LAA as it faces only 50% of the bill rather than 75% had costs been split four ways and the LA was the only party not with a legal aid certificate. So hopefully it won’t be a problem in this case. But what if it is? What if there are problems for the guardian on his publicly funded certificate? Best case scenario is further delay while arguments are had with LAA. Worst case scenario  is the court doesn’t get the evidence it needs and more experts are put off appearing in family courts over concerns they may not get paid for the work they do.

The discussion and clarification about issues of apportionment of expert fees are very relevant for lawyers, which is why I deal with it below. But the real worry for me about this case is WHY are the parents not accepting lawyers? I accept from some Twitter discussions about this, it could just be that they are distrustful of lawyers having had previous bad experiences.

But I worry – and have plenty of evidence to support my worry – that whispering in their ears will be the voices of those such as Hemming. That they have been told not to trust ‘legal aid losers’ and thus they will try and fight their corner alone. Their baby has a serious head injury and they are in the pool of perpetrators. One of the options before the court is adoption. To attempt to participate in these proceedings without a lawyer is sheer madness. But to end up paying money to some dodgy McKenzie Friends would make it a tragedy.

I remain shocked, sad and baffled that the activities of some self styled McKenzie friends appear to attract so little attention or concern in the wider world. I hope these parents do not come to regret the choice they made here.

For more details about my concerns about Hemming and his organisation JFF, see the posts set out here. 

Summary of the decision in Re J concerning experts’ fees

• There is no ‘normal rule’ that costs are apportioned equally between all parties. The court retains discretion.
• Hourly rates are matter for the LAA to determine but apportionment of fees a mater for the court – probably…
• Guidance re applying for prior authority is inconsistent but to avoid delay it should be done quickly
• The LAA should give reasons for its refusal

Fixed rates paid to experts when parties are legally aided.

1. Para 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013 provides that subject to paragraph 2, the Lord Chancellor must pay remuneration to the provider for the expert service at the fixed fees or at rates not exceeding the rates set out in the Table. The Table that follows sets out a list of different categories of expert and the permitted maximum hourly rate for that expert.
2. It is possible to get paid more than these rates. This is set out at paragraph 2 of Schedule 5, if the circumstances are ‘exceptional’. This is defined as meaning the expert evidence must be ‘key’ to the client’s case AND either the material is so complex an expert with high level of seniority is required OR the material is so ‘specialised and unusual’ that only very few experts could deal with it.
3. If parties want to get their expert paid by the Lord Chancellor via the Legal Aid Agency, beyond the rates set in the Table because of exceptional circumstances, they have to apply to the LAA for ‘prior authority’ , i.e. permission to go over the fixed rates. If they don’t get this permission, the solicitors could end up with the bill as they have now a contractual relationship with the expert to pay for his or her services. They are not expected to take this risk and can’t be compelled to take it.
4. The application for prior authority is via a prescribed form. If refused there is no right of appeal. The solicitor can ask the LAA to reconsider but only challenge to refusal is by way of judicial review. The LAA suggest that they take 9 days to process an application but in reality it appears it will take much longer than that. This is potentially a cause for delay in Children Act cases.

Is equal apportionment of fees the ‘normal order’ where there is no issue over resources? ANSWER NO

5. This was the first question posed in Re J. With regard to the issue of apportioning fees the court examined the decision of the Court of Appeal in Re JG (A Child) [2014] EWCA Civ 656. The Lord Chancellor asserted it was the ‘normal’ rule that costs should be apportioned equally between the parties and any departure from this ‘normal’ rule that increases a burden on a publicly funded party should be confined to only ‘exceptional circumstances’. The court rejected the idea that such a ‘normal rule’ existed and said ‘it all depends on the particular circumstances of the case’ (para 16).
6. Instead the court looked to the decision in Calderdale MBC v S and the LSC [2005] 1 FLR 751. All parties were publicly funded except the LA. The parties jointly appointed an expert. The LSC persuaded the court to apportion 50% of the costs to the LA. On appeal Bodey J apportioned costs equally between all parties – so the LA paid 25%.
7. Bodey J was clear this was a matter for the court’s discretion. In the exercise of its discretion the court must consider all circumstances but in particular:
a. The adequacy of the work done by the LA itself
b. Where the report is directed at threshold or welfare issues
c. The need for each party to have confidence in the integrity of the forensic process.
8. The court in Re J considered two other authorities and concluded it was clear that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings.

The Family Procedure Rules 2010

9. The impact of Rule 25.12(6) FPR mirrors Rule 35.9(5) CPR and provides:
Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses
10. The court conceded this is an odd provision as it appears to be concerning itself with the contractual relationship between the parties and the expert. However, the court decided that when reading it alongside Rule 2512(4)(a) – the court may give directions about experts fees and expenses – it is not intended to be prescriptive and simply establishes a ‘default’ position in the absence of any other court directions. This does not however set up a ‘normal rule’ that costs are to be apportioned equally.

What happens when one party has no money?

11. In re J neither parent was able to pay anything as they had very limited means and they had refused to instruct lawyers even though they would have attracted non means and non merits tested legal aid. If the parents had been legally aided the court had no doubt it would have ordered the expert fees to be shared equally between all parties. Black LJ in re JG was very clear that ‘equality is not the norm’ and the impecuniosity of a party may justify the unequal apportionment of an expert’s fees between the parties’.
12. The court therefore concluded at para 18 of the judgment that it had to accept this was a case ‘in which fairness and common sense dictate that an order requiring an equal sharing of the experts’ fees is wholly inappropriate’. The fees should be paid equally by the guardian and the LA.
13. However, the court still needed to consider the Guidance published by the LAA, which was updated in September 2014. Para 1.6 of the Guidance headed ‘Joint instructions and apportionment generally’ advises that it is normal practice for an application to be made for prior authority wherever a party’s legal representative or the expert are unwilling to take a risk as to assessment of expert fees’
14. There is also Guidance published in 2013 on Remuneration of Expert Witnesses which was updated in April 2015. Section 4 of that guidance appears to contradict para 1.6 of the 2014 guidance as it makes application for prior authority mandatory – ‘you MUST always apply for prior authority where you seek to incur costs of an expert service at higher rates than those set out in the Remuneration Regulations…’
15. Para 4.5 of the 2013 Guidance also recognises that unequal apportionment of costs will not always be unusual in care proceedings – for e.g. one party may be an intervenor and it wouldn’t be appropriate for them to bear an equal share of an expert report going to an issue which is not relevant to their intervention.

So what happened in Re J about splitting costs between LA and Guardian?

16. The court approved the instruction of two experts and determined their fees should be split 50/50 between the LA and the Guardian. The court asked – why is prior authority needed before a letter of instruction can be sent? And if an application is made for prior authority for an unequal apportionment of an expert’s fees ordered by the court, is it open to the LAA to refuse that application?
17. Sir Nicholas Wall P in A local authority v S and others [2012] EWHC 1442 (Fam) was clear that the LSC has power conferred on it by Parliament to refuse to fund an instruction or fund in part only. The only remedy is by judicial review. BUT that was a case dealing with the hourly rate paid to experts. How payment of that hourly rate is to be shared between the parties is NOT subject to any regulations. ‘The issue of apportionment is at large’ (para 24).
18. The court was doubtful that the LAA could interfere with the decision of the court about apportionment, but this was a question for another court on another day. However, the guardian’s solicitor thought it prudent to apply for prior authority in any event and court agreed this was sensible.

The hourly rates of the expert in Re J

19. The excess requested by the expert was £432. Dividing this between the LA and the guardian means that the guardian would have to pay £216 more than could be claimed by the LAA. Even if the guardian was only paying 25% that represents £108 more than could be claimed back. The court agreed that the guardian must seek prior authority to instruct the expert at an hourly rate in excess of the standard rates.
20. The application for prior authority should be made without delay and the LAA, if it refused the application should give reasons for its decision as fairness dictates that the parties are able to understand why it has refused to allow what the court has considered necessary – and if appropriate, challenge can be made speedily.