(Court of Appeal, Richards, Black, Fulford LJJ, 21 May 2014)
Funding – LSC decision not to meet costs of jointly instructed expert report – Suggestion of report by children’s guardian
The appeal was allowed and a declaration was made that the LSC decision not the meet the whole cost of an expert report was unlawful.
In proceedings issued by the father for residence and/or contact the child was joined as a party with a children’s guardian and granted a public funding certificate. The guardian’s suggestion for a psychological assessment to analyse family relations, functioning and the impact of the dispute between the parents on the child, was accepted by the district judge. Directions were made for joint instruction of an expert and for the costs to be met by the child.
A report was prepared and the child’s solicitors submitted a claim for the costs to the Legal Services Commission. The LSC responded stating that the costs of the psychotherapist’s report should be shared between the parties and that it would not meet to whole cost. The LSC further claimed that the order of the district judge was in breach of s 22(4) of the Access to Justice Act 1999. The child’s solicitors issued judicial review proceedings against the LSC. The application was dismissed and the child appealed.
The appeal was allowed and a declaration was made that the LSC decision on funding had been unlawful. The suggestion of a psychotherapy report had been the guardian’s. There was no suggestion that the parents had sought to involve an expert. However, the judge ordered a joint instruction but the fact that other parties might have had input into the report did not necessarily rend them liable for the costs of it. The order for the instruction of the expert had been made at the instigation of the children’s guardian on behalf of the child and had not breached s 22(4) of the Access to Justice Act 1999.
The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law. __________________________________________________________________