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Evidence, Practice and Procedure: Legal aid expert evidence authority and Legal Aid Agency

Date:23 MAY 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsThe cases of Re JG (a child by her guardian) v Legal Services Commission and ors (incl Law Society and Secretary of State for Justice) [2013] EWHC 804 (Admin) and R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin) dealt with similar problems. The second dealt with a challenge to the Legal Aid Agency (‘LAA') to refuse to provide reasons to the court where it (the children court) had said why an expert's fee should be paid; whilst the first - long, long after the event and by a Family Division judge - allowed the LAA (as it became) to refuse to comply with a court order that it should pay the expenses as directed by the court (again in children proceedings). JG was under Children Act 1989 Part 2 where only the child had legal aid, T was under Part 4 where all parties with parental responsibility have legal aid.

Collins J as a long-standing administrative law judge in a short ex tempore judgment identified the issue; identified that the LAA must act reasonably and showed why they had not. Their decision to refuse to do what the district judge had ordered was quashed.

In doing so he cited, in clear and simple terms, the then President of the Family Division (Sir Nicholas Wall) in emphasising that it is the duty of the judge to define the extent of expert evidence (A Local Authority v S & others [2012] EWHC 1442 (Fam), [2012] 1 WLR 3098); and that the LAA may control the budget as defined by the court (para [10]); but that it may only do so in reasoned terms:

[12] It must be recognised that the defendant is entitled to question and if persuaded that the payment for which approval is sought is excessive to refuse to accept it. But it must act in a reasonable way. The President gave guidance in the S case in Paragraph 45. He noted that the Court, not the parties, was responsible for making an order that experts be instructed and it was for the court to give reasons why such an order should be made. The parties' agreement to the making of such an order does not relieve the judge of the obligation to decide for himself or herself whether such an order is necessary...

Neither judge stressed the point which is the common law foundation of opinion evidence (now in Civil Evidence Act 1972 s 3(2): there called ‘expert opinion'): that the sole duty of the expert is to the court. Perhaps Collins J did not need to make the point. Ryder J does not remind himself of it, and time and again seems to overlook this Maetwand of the law of evidence and of procedure (now reflected in Family Procedure Rules 2010 25.2).

Ryder J's was the more difficult decision, but early on he loses sight of a simple matter of procedure: that judicial review cannot be used as an appeal. The decision under review was a direction which had been made by a district judge (HMCTS had not been joined as they plainly should have been: it was a HMCTS direction decision). For reasons to do with managing practice, Ryder J wanted to become involved; but law (common law and opinion evidence), procedure and practice seem to have become muddled.

First, with respect, he confused ‘liability' with payment: I may pay for my car to get it out of the garage; I may ultimately not be liable for the cost of its repair because it was badly done. Liability for costs (which includes disbursements or expenses) arises when the court deals with costs at the end of the case (Senior Courts Act 1981 s 51(1)). At the case management stage the court can direct who is to pay expenses. Often it will be the party who seeks the report (eg a defendant insurer). Parties are ‘jointly and severally liable' unless the court otherwise directs (FPR 2010 r 25.12(6)). Thus in the absence of a direction, the creditor expert can go against who s/he wishes (a matter of law, not reflected upon by the judge). How expenses are actually paid does not dictate how the court exercises its discretion under s 51(1); and if the court makes a direction (ie it is not an order) under r 25.12(6) that can be overridden by s 51(1).

What Ryder J has sought to do is to impose on an area - costs - which is classically one for judicial discretion, a form of restraint which is both impractical (how can a children lawyer risk his firm not being paid?) and of questionable legality (appeal by judicial review years out of time). It will encourage the LAA to obstruct the courts in providing for the welfare of children. It takes no account of Children Act 1989 s 1 (the section was not even mentioned). It overlooks that fact that LAA (in its various guises) has a long history - going back as long as the precursors of Access to Justice Act 1999 s 22(4) - of enforcing costs orders where it has paid the initial bill.

If the state cannot provide children initially and the LAA mop up costs orders after the event (which what s 22(4) really means), then it will truly be a poor day for some children who are damaged in their parents' and the court's cross-fire.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Costs are dealt with in Chapter 13.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.