LEGAL AID AND PAYMENT FOR AN EXPERT IN CHILDREN PROCEEDINGS

JG and the Legal Aid Agency

The long awaited conclusion to JG v Lord Chancellor and ors [2014] EWCA Civ 656 was that in the particular case the Legal Aid Agency (‘LAA’) was not entitled to refuse the child’s application in October 2008 for funding of a psychotherapist’s report for use in proceedings by the child’s father under Children Act 1989 s 8 (residence or contact). The appeal against Ryder J’s dismissal of the child’s application for judicial review of the LAA decision was allowed. The decision of the Legal Services Commission (‘LSC’: now LAA) was declared unlawful (para [130]).

The child law proceedings had been started in 2006 by the father. The child was joined as a party and obtained legal aid. Other parties were not legally aided. A report was ordered in October 2008, rendered ‘joint’ in April 2009 ([4] and [5]). An addendum report was ordered in May 2011, to be on joint instructions. The LSC refused to pay because it said, the order for the child only to pay the cost of the report was ‘unlawful’. They cited Access to Justice Act 1999 s 22(4) (Legal Aid Sentencing and Punishment of Offenders Act 2012 s 30 applicable since 1 April 2013). A final hearing due in June 2012 was vacated. Judicial review proceedings, in which the Law Society joined, were heard by Ryder J (ahtw) in October 2012, but not decided by him till April 2013. He accepted that the LAA were entitled to decide as they did, and refused the application for a declaration.

Black LJ concluded on the ‘very fact specific grounds’ (para [131]) that:

[129] As I see the April 2009 order for the instruction of the expert as in fact made at the instigation of the guardian on the child’s behalf, I do not share Ryder J’s view that the order made in April 2009 fell foul of [LASPOA s] 22(4)….

[130] I would therefore allow the appeal against Ryder J’s dismissal of the child’s judicial review claim and substitute a declaration that the LSC’s decision not to meet the cost of the expert’s report was unlawful.

That was therefore what was decided by the court. Black LJ felt the ‘general question’ which Ryder J had sought to answer, concerning the inability of other parties (mostly parents) to contribute to the fees and expenses of ‘expert evidence’ where the court wants expert assistance (para [25]), was not one which she found compatible with judicial review proceedings (para 64):

[64] … I confess to a considerable unease that the judicial review proceedings were used to determine an abstract question of this sort, divorced from the facts and issues that arose between the parties. For very good reasons, that is not normally an appropriate use of litigation. In this particular case, it introduced a complexity which cannot have assisted in the determination of the specific question that required resolution for the parties. One obvious aspect of the added complexity was that the FPR 2010 were not even in force at the time which is relevant to the issue between the parties, let alone in the form which they assumed from the end of January 2013 and which was used to formulate the general question.

 

She gave her views on the point, however ([67] to [119]), but stressed that what she said was obiter

[66] Because I am conscious of the widespread concern that underlies the general question and of the importance that has no doubt been attached to Ryder J’s decision, I have incorporated in this judgment my thoughts on it, though what I say is not part of the ratio of my decision any more than what Ryder J said on the question can have been part of the ratio of his decision. Ultimately, I do not know of how much assistance this will prove to be because I have concluded that there is no universally applicable answer and that everything will depend on the facts of the case under consideration.

What the case did not say

JG was decided on its own facts, and perhaps on an unlawful order (if the court purported to appoint a joint expert: see reference to Rules of the Supreme Court 1965 Order 38 below). The legal background to the case, and what it did not decide, leaves a number of important issues very much alive. These are likely to come up for decision before too long.

Confusion between costs and funding

As with Ryder J below, the court did not distinguish between (1) the funding of proceedings – money which must be provided in advance or as preparation for a case – and (2) the costs of the proceedings: who, where appropriate, should pay the lawyers and other bills (disbursements) for the case? Those costs may fall where they lie; or they may be ordered to be paid by one party to another. The courts only have statutory power to order costs (ie redistribute ex post facto the expenses as costs: Senior Courts Act 1981 s 51). There is no statutory power to do as the LAA was seeking – and will no doubt continue to seek, in cases like this: to require that fees and expenses be paid in advance. FPR 2010 r 25.12(6) – ‘Unless the court directs otherwise, the relevant parties are jointly and severally liable for payment of the experts’ fees and expenses’ – implies that the court has power to ‘direct’ such payment. There is no clear statutory underpinning for this.

The two cases relied upon by the Court of Appeal ([87] to [90]), starting with Calderdale MBC v S and Legal Services Commission [2004] EWHC 2529 (Fam), [2005] 1 FLR 751, Bodey J deal with orders for costs under SCA 1981 s 51. DS (see below) to which reference was made was a ‘guidance’ case and did not decide anything.

Justification on ‘taxation’

Of the trio of cases relied upon by Black LJ at [87] etseq A Local Authority v DS & others (Legal Services Commission in attendance) [2012] EWHC 1442 (Fam), was a case in which Sir Nicholas Wall P was persuaded to give ‘guidance’ where the then LSC refused to pay a fee ordered by the court. At para [38] Sir Nicholas commented as follows:

[38 To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubted the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason, is to apply for judicial review.

After he had written his guidance Sir Nicholas received two more documents from LSC, which he appended to his ‘guidance’ and which included Applications to the LSC for Prior Authority for Experts of October 2012 (now rewritten as Guidance on the Remuneration of Expert Witnesses (April 2013), and including at Part 4 ‘Prior Authority in Family Cases’). The first of these guidances includes that a refusal of authority ‘does not mean that the cost of an expert will not be met. Refusals may take the form of telling the solicitor to “justify on taxation”’.

As ever, therefore, solicitors may be paid, following detailed assessment, if the court so orders. The High Court did not consider the basis on which legal aid bills (‘remuneration’) are ultimately paid. It may seem unlikely that a costs judge would refuse to order payment to a lawyer, where another judge had ordered that a report should be obtained and be paid for by the LAA. The same point – a refusal to comply with a court order – was considered a few weeks after Ryder J’s decision in the Administrative Court by Collins J in R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin) (‘T’) was decided three weeks later by Collins J. T, it could be said, was the only decision of its kind on the merits.

Neither that case, not the detailed assessment point seem to have been considered by the Court of Appeal in JG (and see ‘Children Proceedings: LAA authority and the case management decision’, David Burrows [2013] Family Law August at 1056).

Joint instruction of experts: unlawful at the time

This point is only relevant to the JG decision, but it seems to have been overlooked that the regulatory source for instruction of experts in children proceedings till April 2011 (the date of coming into operation of FPR 2010 Part 25) was RSC 1965 Order 38 which applied to all family proceedings (save ancillary relief proceedings, to which CPR 1998 Part 35 was applied). There was therefore no power in a family court (save in financial remedy proceedings) to order a joint expert report; unless a judge could be persuaded that the common law had overridden Rules of the Supreme Court 1965. The case might be based in any event on an unlawful premise. This may render what JG did decide a little shakey.

Human rights considerations

Comments were made by Black LJ on the relevance of a child’s rights and European Convention 1950 Arts 6 and 8 to LAA decisions; and especially in the context of LASPOA 2012 s 10 (exceptional cases). This calls for further comment soon.

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