News

Re K and Re S (Legal Aid: Experts’ Fees)

‘Where a Family Court has authorised the instruction of an expert witness in public law proceedings, and has directed that the expert’s fees are to be covered by equal contributions from each party, but where the rate to be charged by the expert exceeds that which the Legal Aid Agency [‘LAA’] is prepared to sanction, what is the court to do?’ [1]

This is an issue which most will have experienced, been familiar with and questioned for some time. Sir Andrew McFarlane has now handed down a judgment which addresses such question.

This case involved two separate cases. They were not linked; save for they involved the same Local Authority (London Borough of Barnet). The factual matrix is not relevant save to say both cases involved alleged NAI to young children where expert reports were required. In both cases, experts were identified that were above the permitted hours and rates of the LAA. The LAA gave prior authority, but not for the full amount, which left the question of whether the Local Authority should pick up the shortfall. In Re K, ‘an interim solution was agreed that the Local Authority would cover the shortfall with the legally aided parties agreeing to reimburse the Local Authority in the event they received additional funding from the LAA, either as a result of reconsideration of the claim or a court order directed the LAA to pay’ [6]. Shortly before the main hearing, the LAA reviewed its decision and accepted a higher rate would be allowed.

In Re S, at an interim hearing, the Court substituted one expert who would work within standard LAA rates. However, with respect to the paediatrician, the Local Authority were to pick up the shortfall on an interim basis, but the LAA were asked to review the matter [9]. After that review, the LAA did increase the number of hours and rate. Approval was given at the bottom end of the range but the LAA indicated that if the expert exceeded those hours and that work could be justified and evidenced, then the costs would be recoverable when the costs are assessed at the end of the case. In fact, the expert did take longer (by one hour) and at the main hearing, the LAA indicated that they would review the matter and the Local Authority would not be expected to pay the shortfall [10 and 11].

Therefore, at the hearing, there were in fact no issues for the Court to determine. However, Sir Andrew McFarlane gave judgment to explain the problem and then describe ways in which matters have been resolved following the work of the experts’ group and publication of revised guidance by the LAA’ [12].

It is worth noting that months before the final hearing, Sir Andrew McFarlane had invited Mr Justice Williams to convene a subgroup of the “President’s Experts Working Group’ to look at this particular issue. The LAA was also in the process of reviewing its guidance. Therefore, the judgment was delayed in order to encompass both [3].

The Court set out the position of the LAA. It was stressed on behalf of the LAA that ‘the LAA had not been aware of the widespread practice of legally aided parties persuading local authorities, or courts ordering local authorities, to make up the difference when there was a shortfall in the payment of the fees of an appointed expert’ [19].

By the point of the judgment, the LAA had amended its  'Guidance on the Remuneration of Expert Witnesses in Family Cases.' Within that, it states: '2.4. The intention of the LAA is that once a prior authority is granted it should, other than in unusual circumstances, cover the full cost of the expert and the Local Authority should not make up shortfalls in the amounts requested by experts. The possibility of local authorities' topping up fees is not a relevant consideration for the LAA prior authority decision.' [23].

That guidance also considers what is meant by ‘exceptional circumstances’ when looking at whether the LAA will grant prior authority [24]:

'2.2. In order to be granted prior authority for fees or rates higher than those listed in the Remuneration Regulations, you will need to demonstrate that the instruction of the expert involves exceptional circumstances. Exceptional circumstances are defined in paragraph 2(2) of Schedule 5 of the Regulations and are where the expert's evidence is key to the client's case and either: 

  1. a) the complexity of the material is such that an expert with a high level of seniority is required; or 
  2. b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.

2.3. Scarcity can be demonstrated by providing alternative quotes or evidence of attempts to secure alternative quotes. Complexity can be demonstrated by providing a background to the case, either within the Letter of Instruction, or as a separate document. The detail may also be set out in the court order or provided by the expert in the breakdown of their estimate. When making a decision on whether exceptional circumstances are met and higher rates should be approved, the LAA will consider, in addition to the criteria above, the total costs of the work sought, the speed at which the work has to be completed, any identified shortage of experts available at all or within the timeframes required and any other exceptional reason.'

The experts group also considered the issues. The London Borough of Barnet had proposed some general principles, and these were endorsed by the experts’ group. Sir Andrew McFarlane sets those out within the judgment [29]:

'i. Those seeking to instruct an expert should make all efforts to identify an expert with the requisite experience and expertise who works within the prescribed rates and the prescribed number of hours and can report within an acceptable timeframe. 

  1. If such an expert can be identified then that expert should be preferred by the court absent any exceptional reason. 

iii. A local authority should not routinely be considered as a source of funds to make good any shortfall in the instruction of an expert. 

  1. A local authority should only be ordered to pay for the shortfall of an expert where the court is satisfied: 
  2. That there has been proper exploration of other experts who may be able to complete the work within the prescribed rates and for the prescribed number of hours. 
  3. That the application for prior authority that has been considered by the Legal Aid Agency has been argued fully and included all material relevant to the decision making of the Legal Aid Agency. 
  4. That the parties (including the Local Authority) have given proper consideration to the possibility of a claim for judicial review against the Legal Aid Agency. 
  5. That the reason given by the Legal Aid Agency for refusing to approve the application for prior authority was full and enabled the court and the parties to understand the reason for refusal.'

Sir Andrew McFarlane also endorsed those principles, save for he suggested ‘that an additional subparagraph (iv)(bb) should be inserted to ensure that full use is made of the option for informal review by the LAA:

(iv)(bb) That an application has been made to the Legal Aid Agency to review its decision under paragraphs 3.22 and 3.25 of the Remuneration Guidance.’ [32]

He went on to say that ‘where any process of review may take time, and postpone the chosen expert starting work, a court should consider arranging (either by agreement or court order) for the local authority to cover any shortfall on an interim basis pending further consideration by the court once the LAA process, and any challenge, has run its course. In line with the express wording of paragraph 2.4 of the revised Guidance, the fact that the local authority may be covering the shortfall in the interim is not a relevant factor for the LAA when considering an application for prior authority.’ [33]

The experts group also suggested a template Court order when approving the instruction of an expert where the hours or rates will exceed the LAA rates. The terms of this template has also been said to have been agreed by the LAA. ‘Courts should henceforth use this template in order to record the decision in such cases in a uniform manner which is compatible with the need to give the LAA relevant information when considering any application for prior authority [30]:

 

'The following directions shall apply to the instruction of [name of expert]: 

  1. The lead for the instruction of the expert shall be [name].
  2. The letter of instruction to the expert [as approved by the court today] / [to be agreed by the parties by 4.00pm on [date] and filed at court] must be sent the expert by 4.00pm on [date].
  3. The issues in the proceedings to which the expert evidence relates are:

(i)  [insert]

(ii) …..

  1. The Court is of the view that the facts of the case are exceptional, as defined in paragraph 2(2) of Schedule 5 of the Regulations,  and the experts instructed are essential to enable a fair and just conclusion of the proceedings because:

(i)     [insert Judge's reasons].

(ii)    Complexity of material justifies appointment of a senior expert.

(iii)   Material of specialised and unusual nature.

(iv)   Confirmation of number of experts approached and reasons why that expert should be appointed. 

  1. The questions to be dealt with by the expert are [as set out in the draft letter of instruction] / [as follows: [insert]].
  2. Permission is [not] given for the expert to see and assess the child[ren].
  3. Permission is [not] given to call [name] to give oral evidence at the [final]/ [finding of fact] hearing].'

The London Borough of Barnet ‘took one for the team’ so to speak in bringing this case and this issue to the Court. The judgment reports that some months before the hearing, 88 different Local Authorities had signed a letter raising the point [3].

What is clear from this judgment is that it is not (emphasis added) the LAA’s expectation, save for in exceptional circumstances, for Local Authorities to pick up any shortfall when it comes to experts’ fees. As a result of the experts’ group, the amended LAA guidance and  the wording within this judgment, there now appears to (hopefully) be an answer to the ever-rising question of experts’ fees within these cases.