Family Law

The High Court has handed down judgment on a claim for judicial review following a refusal by the Legal Services Commission (LSC) to fund the full cost of an expert report in Children Act proceedings relating to a 10-year-old girl, JG. The LSC agreed to fund a third of the costs on the basis that JG's mother and father were also parties to the proceedings. It was only JG who was in receipt of public funding. An application was made by JG that the LSC had acted unlawfully by refusing to fund the report in full.

The challenges to the LSC's decision not to fund the expert's report were based on three grounds:

1)    the LSC acted unlawfully in refusing to pay for the report in full;

2)    the LSC should have appealed the district judge's order; and

3)    the child's solicitor had a legitimate expectation that the LSC would pay for the report in full

The Family Procedure Rules 2010 (FPR) concerning the use of expert evidence in proceedings were considered in detail, namely Part 25 of the FPR, as supplemented by Practice Direction 25A. The new rule 25.1, which came into force at the end of January 2013, dictates that expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings. Paragraph 2.1 of the new PD 25C further provides that, wherever possible, expert evidence should be obtained from a single joint expert (SJE). 

Consistent with PD 25C, expert evidence in children proceedings should in the ordinary case be given by way of an SJE working within the LSC prescribed rates, the apportionment of whose overall fees should have been agreed and the payment of whom by legally aided parties secured, in advance of instruction.

The principle regarding expert fees was of equal apportionment unless the court directed otherwise (FRP r 25.12), following Calderdale MBC v S [2005] 1 FLR 751.

Section 22(4) of the Access to Justice Act 1999 provides that whether or not a person has the benefit of public funding, it should not affect the rights or liabilities of another party or the principles on which the discretion of any court or tribunal would normally be exercised.

It would, therefore, be wrong for the court to order the child to pay any more for the expert than he or she would otherwise have been ordered to pay in the situation that he or she was not legally aided. Conversely, it would be equally wrong for a non-legally aided party to be ordered to pay less than he or she would otherwise have been ordered to pay on the basis that he or she was not in receipt of legal aid. It did not follow, however, that a court may not lawfully make an order other than of equal apportionment in cases where only one or some of the parties were in receipt of legal aid provided that the reasons were stated. 

The Law Society contended that an order for equal apportionment of the expert costs in this case was wrong and unlawful. They argued the proper approach was for the entirety of the cost of the expert evidence to be met by the public purse so that the evidence was adduced by the child pursuant to the children's guardian's powers under Part 16 of the FPR. However, the court found that the Law Society's position would in essence have required a change in the rules and practice directions of the court and would mean that in many cases the entire cost of the expert evidence would be borne by the state, despite it being evidence in which the non-legally aided parties had an equal interest. It would have opened the floodgates to inappropriate applications for children to be joined as parties so that a guardian could be appointed to access public funding that the parents did not have.

The court concluded that the Law Society's approach should not be followed.

The court must have formed the view that the expert evidence in question was ‘necessary'. The court should identify the key issues and examine the evidence that would be necessary to resolve them.

The court should be slow to grant permission for an expert to be instructed in circumstances where the instructing parties had not complied with the duties placed upon them under the FPR and Practice Directions. If the apportionment of an SJE's fees could not be agreed by the parties, the court would have to consider apportionment, and the seeking of any prior approval from the LSC may have to be conditional upon that consideration.

The court should order equal apportionment of the costs of a SJE, save in exceptional cases. Where the court had a genuine reason to believe that a non-legally aided party may not be able to pay for or contribute towards the expert evidence, the court should undertake a robust scrutiny of that party's means.

There was no general right to civil legal aid arising out of the operation of Convention rights. However, case-law in relation to Article 6 established that, in order to guarantee a person's effective access to the court, legal aid may be required to be provided. At the point where a court had exhausted all of the ordinary mechanisms to obtain evidence that was necessary to make a decision in the best interests of a child, an access to justice argument may arise. An order made in exceptional circumstances to ensure effective access to justice by a party would not contravene s 22(4) of the 1999 Act, because it would not be affected by the fact that one party was legally aided.

Prior authority should be regarded as the normal practice wherever a party's legal representatives or the expert were unwilling to take a risk as to an assessment of the expert's fees. The LSC should have in place appropriate procedures for expedited decision-making in children cases. The child's timetable should never have to wait for a funding decision.

Essentially, JG's challenge to the legality of the LSC's decision could only succeed if the parties and the court had demonstrated the exceptionality of the decision to fund the instruction of the expert other than by an equal apportionment of the cost of the same.

The real barrier to the claim was the fact that the decision to make the expert an SJE was a device to permit a funding decision in circumstances where JG's father had said he could not pay, but apparently needed the evidence. When that did not succeed, what followed was an ex post facto allocation exercise, which might have been legitimate had it occurred in the required manner, but which was hardly a sound basis to criticise the LSC for illegality. The order of the court made it plain that it was made because the parents said they were unable to pay. The court, therefore, ordered that the party in receipt of public funding pay.

Summary

In the ordinary course, where an expert was jointly instructed, the parties should bear the costs of the report equally. The court may not make any different order from that which would ordinarily be made because a party is in receipt of legal aid, and where a court had made an order that a party in receipt of legal aid should bear a certain cost, the LSC has the power to refuse to provide funds for those costs, as long as its refusal is not irrational or otherwise unlawful in a public law sense.

On the facts of the case, the LSC's response to the materials presented to them was not unlawful and irrationality was not argued. 

JG's further challenges, that the LSC should have appealed the District Judge's order, and that the child's solicitor had a legitimate expectation that the LSC would pay for the report in full, were also not accepted. The LSC was under no obligation to appeal, not being a party to the proceedings. The LSC also had the power to refuse to fund an instruction or only to fund it in part, notwithstanding the terms of the court's order. No representations made by the LSC to JG's solicitor could be regarded as them having agreed to fund the full report. The LSC's guidance for private children's proceedings also supported the view that prior authority should have been sought in the case.

The claim was dismissed and, where appropriate, permission refused.

Amy Sanders is a Family Law PSL at Jordan Publishing and was formerly a children and family solicitor practising in London and more recently in Devon.

She can be contacted on Twitter: @Amy_Sanders1