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6.24This section is not an exhaustive description of the legal aid scheme and readers are referred to the
LAG Legal aid handbook for a comprehensive guide.
1V Ling and S Pugh (eds), Legal aid handbook 2015/6 (LAG). Regular updates appear on www.legalaidhandbook.com, which is an invaluable resource.
6.25There is no single document which describes the legal aid scheme. Below is a list of the materials referred to, to which practitioners will need to access from time to time:
Primary legislation
•Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Schedule 1.
Secondary legislation
•Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104;
•Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480;
•Civil Legal Aid (Statutory Charge) Regulations 2013 SI No 503;
•Civil Legal Aid (Procedure) Regulations 2012 SI No 3098.
Guidance
•Lord Chancellor’s Guidance under section 4 of Legal Aid, Sentencing and Punishment of Offenders Act 2012;
•VHCC: a solicitors’ information pack (non-family) (2013).
LAA contracts
•Standard Civil Contract 2014;
•2013 Individual Case Contract (High Costs Cases) Specification.
Legal Aid, Sentencing and Punishment of Offenders Act 2012
6.26Publicly funded advice and representation (‘legal aid’) is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into force on 1 April 2013 and removed a number of areas of law from the scope of legal aid. The Legal Services Commission (LSC), which had previously administered legal aid in England and Wales, was replaced by the Legal Aid Agency (LAA) by the Act. The LAA is headed by the Director of Legal Aid Casework.
6.27Schedule 1 to LASPO lists those areas of law where advice and/or representation can be provided under legal aid. If an area of law is not in Schedule 1, then no legal aid in any form may be provided to a client seeking help in this area of law unless it is necessary because to deny legal aid would be a breach of the European Convention on Human Rights (ECHR).
2Under LASPO s10, legal aid (Legal Help and certificates) may be made available on an ‘exceptional’ basis if it is necessary under the ECHR. The threshold for such exceptional funding is extremely high, requiring the applicant to show that to deny them legal aid would be a breach of the ECHR. Only a handful of the hundreds of applications under section 10 made since 1 April 2013 have been granted. There is no funding for making the application for exceptional funding unless it is actually granted.6.28Those areas of law listed in Schedule 1 are then subject to further exclusions and criteria which appear in the regulations. These should be considered in order to ascertain whether a client presenting with a particular case is eligible to receive legal aid for their problem, and what form of legal aid should be provided.
6.29The purpose of LASPO has been described by the Supreme Court as:
… in very summary terms, to channel civil legal aid on the basis of the nature and importance of the issue, an individual’s need for financial support, the availability of other funding, and the availability of other forms of dispute resolution.
3R (Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 3 WLR 387 at [37].Legal aid contracts
6.30All providers of legal aid must hold a contract with the LAA which covers the areas of law which they offer. The provider must at all times comply with the terms of the contract. These include the duty on both the provider and the LAA to act in good faith in relation to the contract.
4General Terms, 2014 Standard Contract, 2.1. Providers of legal aid who hold contracts in the areas of mental health and community care may also provide legal aid in cases arising under the MCA 2005. Currently the position is governed by the 2014 Standard Civil Contract and the associated category specifications.
6.31As from April 2016 practitioners are required to make use of the Client and Cost Management System when submitting applications to the Legal Aid Agency.
The different levels of legal aid
6.32Legal aid is provided at different levels. The usual first level of funding is Legal Help. This will cover an adviser taking instructions at the start of a case, writing letters and advising whether further action is required. Informal assistance at a particular hearing can be provided as ‘Help at Court’.
5Civil Legal Aid Procedure Regulations 2012 reg 5. Neither cover ongoing representation of a client in court proceedings. If the practitioner wishes to represent the client in the Court of Protection, a legal aid certificate must be obtained, which is linked to the specific proceedings.
Securing legal aid
6.33In order to qualify for any form of legal aid, the following criteria have to be met. Each of these is addressed in more detail below:
•The case must be within ‘scope’ of legal aid.
•The client must meet the ‘merits test’ as to whether legal aid is warranted.
•The client must meet the ‘means test’ and be financially eligible for legal aid (unless the case is a section 21A challenge, and the client is either P or the relevant person’s representative (RPR)).
•The client must produce the relevant evidence of their means (benefits, bank statements etc) to satisfy the requirements of the LAA.
Scope of legal aid
6.34The relevant paragraph of Schedule 1 to LASPO for cases where the Court of Protection has jurisdiction is paragraph 5, which provides that civil legal services can be provided ‘in relation to matters arising under the Mental Capacity Act 2005’.
6LASPO Sch 1 Part 1 para 5(1).6.35This means that legal aid can – provided all the other criteria are met – be provided in respect of legal issues arising under the MCA 2005.
6.36This is subject to certain exclusions. No legal advice at all can be provided about:
•The creation of lasting powers of attorney (LPAs) under the MCA 2005; or
•The making of advance decisions under that Act.
7LASPO Sch 1 Part 1 para 5(3). 6.37Therefore, practitioners may not provide any advice at all under legal aid to a client who wishes to prepare an LPA (whether financial or welfare) or an advance decision. Such clients will have to pay privately for advice. However, if a client requires advice or representation about a case before the Court of Protection which concerns determinations and declarations about the effect, meaning validity or applicability of a LPA or advance decision, then it may be possible to provide legal aid, in some form, assuming that all other criteria are satisfied.
8LASPO Sch 1 Part 1 para 5(4).6.38Advocacy services can be provided in the Court of Protection
9LASPO Sch 1 Part 3. if the case concerns at least one of the following issues:
•a person’s right to life;
•a person’s liberty or physical safety;
•a person’s medical treatment (within the meaning of the Mental Health Act (MHA) 1983),
•a person’s capacity to marry, to enter into a civil partnership or to enter into sexual relations; or
•a person’s right to family life.
10LASPO Sch 1 Part 3. The inherent jurisdiction
6.39Civil legal services can be provided in relation to the ‘inherent jurisdiction’ of the High Court in relation to children (persons under the age of 18) and vulnerable adults (persons aged 18 and over).
11LASPO Sch 1 Part 1 para 9.Breaches of ECHR rights by a public authority
6.40Claims for damages in respect of acts and omissions by public authority remain in scope of legal aid, if these involve a ‘significant breach’ of convention rights. As explained in para 6.58 below the LAA has accepted that such claims can be litigated in the Court of Protection.
The merits test
6.41Once it has been established that the case is within the scope of legal aid, the next matter to be considered is whether the case meets the merits criteria. If it does not, legal aid will not be available for advice, or in the case of court proceedings, granted.
6.42The relevant merits tests are set out in the Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104. These include definitions of the tests of prospects of success (regs 4–5); public interest (reg 6); reasonable private paying individual (reg 7); and proportionality (reg 8).
6.43The criteria for the grant of legal help are not the same as the criteria for the grant of full representation, so these are considered separately.
The merits test for Legal Help
6.44The criteria for qualification for Legal Help are set out at regulation 32 of the Merits Regulations 2013. They are that it must be reasonable to provide Legal Help having regard to other potential sources of funding and that there will be sufficient benefit to justify the cost of Legal Help. A person’s conduct is relevant to whether it is reasonable to provide legal services (including legal help).
12Civil Legal Aid (Merits Criteria) Regulations 2013 reg 11(7).6.45It will be seen from para 6.32 above that advice about any matter arising under the MCA 2005 could be provided under legal help, apart from those areas excluded by LASPO Sch 3 para 5(1)(3). This could include advice to a representative under COPR r3A(2)(c) about how to discharge their role.
The merits test for Help at Court
6.46The test is the sufficient benefit test as above. In addition, the circumstances and complexity of a case must be such that ‘advocacy is appropriate and will be of real benefit to that individual’.
13Civil Legal Aid (Merits Criteria) Regulations 2013 reg 33.The merits test for Legal Representation
6.47Legal representation may only be provided if the relevant merits tests are met and it is reasonable in the light of the person’s conduct (reg 11(7)).
6.48There are standard criteria which apply in a number of categories of civil proceedings, and then specific criteria which are relevant in the Court of Protection. The standard criteria are set out in regulation 39 below. If they are not all satisfied, the individual will not get legal aid:
39. An individual may qualify for legal representation only if the Director is satisfied that the following criteria are met –
(a)the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case;
(b)the case is unsuitable for a conditional fee agreement;
(c)there is no person other than the individual, including a person who might benefit from the proceedings, who can reasonably be expected to bring the proceedings;
(d)the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution;
(e)there is a need for representation in all the circumstances of the case including–
(i)the nature and complexity of the issues;
(ii)the existence of other proceedings; and
(iii)the interests of other parties to the proceedings; and
(f)the proceedings are not likely to be allocated to the small claims track.
6.49The impact of the test in regulation 39(c) was considered in
R (Moosa) v Legal Services Commission.
14[2013] EWHC 2804 (Admin). This case was brought prior to LASPO, but the same test had formed part of the previous merits criteria. The case concerned a dispute between a family and local authority as to where their son who had significant difficulties would live. The son was being cared for in residential care. The family wanted him to return home. The local authority commenced proceedings in the Court of Protection to determine P’s best interests in terms of his residence. His mother was a respondent on the Form COP1 and pursuant to COPR r73 she automatically became a party. She was financially ineligible for legal aid as she had an amount of equity in her home (where she hoped to accommodate P) that took her over the capital limits. Mr Justice Charles agreed to join P’s brother as a party. P’s brother was a student and was financially eligible for legal aid. It was made clear to the Court of Protection that the reason for joining the brother was to ensure that there was one family member who was eligible for public funding. That member would then become the voice of the family.
6.50The LSC refused the brother funding on the basis that the mother could reasonably bring the case. The refusal was challenged. It was argued that a refusal to fund the brother simply made it impossible for anyone to argue the family’s position with the benefit of legal aid, because the mother could not access the equity in her home, and the home was the place where the family wished to accommodate their son. It was unrealistic to consider for example the sale of that property to allow the mother to realise some of her capital. While the judge expressed some sympathy to the family the application for judicial review was refused.
6.51The
cost-benefit criteria and the
prospects of success test must also be met.
15Civil Legal Aid (Merits Criteria) Regulations 2013 reg 41.6.52The cost-benefit criteria require the Director to be satisfied that (assuming the case is not for damages, or of significant wider public interest) the reasonable private paying individual test is met. If the case is of significant wider public interest then the proportionality test must be met (reg 42).
6.53As from 22 July 2016, the prospects of success test is as follows.
16https://www.gov.uk/government/news/civil-news-merits-criteria-regulations-amended-from-22-july/. The test will be met where the Director is satisfied that the prospects of success are very good, good or moderate. All other cases must be classified as one of the following:
•‘Marginal’ – where there is between 45 and 50 per cent chance of a successful outcome;
•‘Borderline’ – where it is not possible to say whether there is a greater than 50 per cent chance of success or whether the prospects of success should be classified as poor or marginal, because of disputed law, fact or expert evidence;
•‘poor’ – where there is less than 50 per cent chance of obtaining a successful outcome.
The test will not be met where the prospects of success are poor but may in some cases be met where the prospects are marginal or borderline, for example because the case is of overwhelming importance to the individual or of significant wider public interest.
6.54If all the criteria above are met, a further test still needs to be carried out if the case is being heard in the Court of Protection. This is set out in regulation 52 and provides that full representation will only be granted if two further tests are met.
17Note that reg 52 does not apply to cases heard under the ‘inherent jurisdiction’. The
first test is that the Court of Protection has ordered or is likely to order an oral hearing,
and that it is necessary for the individual to be provided with full representation in the proceedings.
18Civil Legal Aid (Merits Criteria) Regulations 2013 reg 52(2). This therefore excludes ‘streamlined’ applications for authority to deprive P of his or her liberty which are uncontentious? the so-called ‘
Re X’ applications.
19Discussed in more detail in chapter 21. Legal help however may be available to parties to such cases, or to a person who has been appointed to represent P under COPR r3A(2)(c).
6.55The Lord Chancellor’s guidance as to when it is ‘necessary’ to provide representation is considered below at para 6.59.
6.56The second test is that the case relates to:
a)a person’s right to life;
b)a person’s liberty or physical safety;
c)a person’s medical treatment (within the meaning of the Mental Health Act 1983);
d)a person’s capacity to marry, to enter into a civil partnership or to enter into sexual relations; or
e)a person’s right to family life.
6.57From the list above it can be seen that cases which concern a person’s right to respect for their home or for their private life and which may also engage rights under Article 8 ECHR could fall outside the merits criteria.
6.58In
R (SL) v Director of Legal Aid Casework and Cambridgeshire County Council20Unreported, CO/5916/2015.The sealed order can be viewed at https://courtofprotectionhandbook.com/sealed-final-order-04-04-16/ the Legal Aid Agency conceded that legal aid funding is available to P to bring a claim for damages under the Human Rights Act in the Court of Protection. Such claims can be brought in relation both to ongoing and historic violations of P’s rights under the ECHR.
The Lord Chancellor’s Guidance
6.59It is important to be aware of this Guidance which sets out the approach that will be taken to questions such as what ‘other sources of funding’ might be (para 7.14); and when a case is unsuitable for a conditional fee agreement (CFA) (para 7.16). Paragraph 7.23 of the guidance deals with when it will be ‘necessary’ to represent an applicant for legal aid, and comments:
It should not be necessary for there to be more parties legally represented than there are positions to be argued. This may be particularly relevant in a welfare case in the Court of Protection where an additional family member seeks representation….
6.60Section 9 of the Lord Chancellor’s Guidance deals with mental health cases, and includes the following relevant provisions:
•Legal representation (ie a legal aid certificate) may be refused if it is premature or if legal help is more appropriate (para 9.5).
•For Court of Protection work, the expectation will be that ‘support will be available through legal help’ (para 9.8).
•Accommodation cases will only be in scope if they affect P’s family life.
•Although legal help is not available to create an advance decision or LPA, it is available to advise on potential or actual proceedings about the validity or applicability.
Financial eligibility (means test)
6.61The means test is governed by the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480.
6.62There is only one exception to the rule that the client must satisfy the means test before getting legal aid in the Court of Protection. This is where a person is deprived of their liberty under a standard authorisation under MCA 2005 Sch A1 and there is an appeal against the authorisation under MCA 2005 s21A. In this case, the person under the authorisation can obtain legal aid without their means being assessed, and so can their ‘relevant person’s representative’ (RPR).
6.63The relevant regulation (reg 5(1)(g)) is below and shows when legal aid can be provided without the applicant satisfying the means test:
g)legal representation in relation to a matter described in paragraph 5(1)(c) (mental capacity) of Part 1 of Schedule 1 to the Act to the extent that–
(i)the legal representation is in proceedings in the Court of Protection under section 21A of the Mental Capacity Act 2005; and
(ii)the individual to whom legal representation may be provided is–
(aa)the individual in respect of whom an authorisation is in force under paragraph 2 of Schedule A1 to the Mental Capacity Act 2005; or(bb)a representative of that individual appointed as such in accordance with Part 10 of that Schedule;
6.64From this it will be seen that the exemption from the means test relates to legal representation only. Legal help could only be provided in relation to a section 21A case if the client satisfied the means test.
6.65Guidance from Charles J in
Re HA21[2012] EWHC 1068 (COP), [2012] COPLR 534. (determined before the regulations came into effect) encouraged judges in section 21A cases to make interim orders depriving P of his or her liberty under MCA 2005 s16. The authorisation would then fall away and P’s entitlement to non-means tested legal aid would be lost. In
UF v (1) A Local Authority (2) AS (3) Director of Legal Aid Casework (4) Ministry of Justice.
22[2013] EWHC 4289 (COP), [2014] COPLR 93. UF appealed against a standard authorisation. The district judge made orders depriving UF of her liberty under MCA 2005 s16. On the expiry of the standard authorisation, UF was advised by the LAA that her means would now be assessed because she no longer came within regulation 5(1)(g)(ii)(aa) above. UF’s means would have made her ineligible for legal aid. She applied to the court to vary the court’s order so that the court’s authorisation of her deprivation of liberty would be set aside. Charles J held that in the vast majority of cases the court could exercise its powers under MCA 2005 s21A(3)(a) to vary the standard authorisation; and could extend an extant authorisation pursuant to MCA 2005 s21A(2)(b).
6.66The Director of Legal Aid Casework and Ministry of Justice assured Charles J that if a court adopted either of the courses in a) or b) or the course adopted in that of UF, it would not treat the orders as contrivances and refuse public funding for that reason when applying the merits test for public funding. The effect of these concessions is that it is clear that non-means tested legal aid should remain available on any application under MCA 2005 s21A for so long as P is deprived of his or her liberty, including under orders of the court which are framed as set out in UF. An example is set out below:
Example
P brings proceedings a) challenging a standard authorisation and b) seeking declarations that his Article 5 rights have been breached by an act done in relation to the standard authorisation. At the first hearing the authorisation is about to expire but the judge varies the standard authorisation by extending it to the next hearing. P will continue to be eligible for non-means tested legal aid. At the second hearing the judge terminates the standard authorisation and P returns home. The proceedings continue while P seeks declarations about the lawfulness of the authorisation. P will no longer be eligible for non-means tested legal aid.
6.67In UF, Charles J also indicated that, where the court varied the standard authorisation by extending it, the court may need to consider making an order under MCA 2005 s21A(6) exonerating the supervisory body from liability for the extended period as the court would have assumed the responsibility for the deprivation of liberty.
6.68Non–means tested legal aid is not, however, available if P is deprived of his or her liberty through the order of the court, because he or she lives in a setting where MCA 2005 Sch A1 (DOLS) cannot be used.
6.69In both
Re NRA23[2015] EWCOP 59, [2015] COPLR 690. and
Re JM,
24[2016] EWCOP 15, [2016] COPLR 302. Charles J considered the position an uncontentious application is made for orders depriving P of his or her liberty (so-called ‘
Re X’ cases)
25See further para 21.56 onwards. under MCA 2005 s16. Such cases rarely involve an oral hearing and therefore do not satisfy the merits test (see para 6.46 above); legal help would also only be available if P were financially eligible. He encouraged the Secretary of State to consider whether to amend the legal aid scheme for such cases. Charles J found in
Re JM that the ‘minimum procedural requirements’ to satisfy Article 5 necessitated ‘some assistance from someone on the ground who considers the care package through P’s eyes’.
26Re JM at para 140. A litigation friend (or an accredited legal representative (ALR): see para 11.4) could fulfil that role, and non-means tested legal aid in such cases would make this a potential solution to the dearth of representatives for P in ‘
Re X’ cases. However as at the time of writing, there has been no change in policy to reflect these observations.
6.70In some cases, if the applicant for legal aid is in receipt of certain benefits, then their income will not need to be further assessed.
27Civil Legal Aid (Financial Resources and Payments for Services) Regulations 2013 SI No 480 reg 6. However, in all cases at all levels of legal aid, an applicant for legal aid must have their capital assessed (discussed in the next section).
Evidence of financial eligibility
6.71All applicants for legal aid need to provide evidence of their capital, even if they are in receipt of ‘passporting benefits’ where the Department for Work and Pensions (DWP) has already undertaken an assessment of their capital in order to decide that they qualify for benefits.
6.72When acting for P, or a protected party, it is P’s means which must be assessed, and not those of P’s litigation friend. The LAA encourages practitioners having difficulty obtaining evidence of means in these cases to email: contactcivil@legalaid.gsi.gov.uk with the heading ‘Vulnerable Client Means Assessment’.
Practical issues
6.73Although it will be P’s means which are assessed for the purpose of an application for legal aid, legal aid forms should be signed by the litigation friend (if appointed) or, if there are no proceedings on foot, by the person who intends to act as litigation friend. The Civil Legal Aid (Procedure) Regulations 2012 permit the signature of applications for legal services on behalf of a protected party by a person acting or proposing to act as litigation friend; or by any other person where there is good reason why the litigation friend or proposed litigation friend cannot make the application. This does not include the provider of legal services.
28Civil Legal Aid (Procedure) Regulations 2012 reg 22. The Standard Civil Contract authorises a third party to sign forms on behalf of a protected party where there is sufficient connection between the protected party and the third party to ensure that the third party is likely to act reasonably; and when the third party has sufficient knowledge of the protected party’s means to provide instructions
29Standard Civil Contract 2014, General Specification, para 3.12..
6.74The appointment of an ALR does not bring funding with it. ALRs will need to be authorised by the court to investigate P’s means in cases other than section 21A applications.
6.75The regulations do not currently cater for ALRs to sign legal aid forms on behalf of P. It is suggested that until such time as the regulations are amended, courts appointing ALRs should specifically authorise the ALR to sign the application form on behalf of P.
The statutory charge
6.76LASPO s25 provides that the LAA’s charge attaches to:
(a)any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and
(b)any costs payable to the individual by another person in connection with such proceedings or such a dispute.
6.77The definition above is wide and is not limited to property recovered or preserved in the same set of proceedings in which legal aid was made available.
6.78The Civil Legal Aid (Statutory Charge) Regulations 2013 SI No 503 give the Lord Chancellor discretion to waive all or part of the statutory charge in limited circumstances.
30Civil Legal Aid (Statutory Charge) Regulations 2013 regs 8 and 9. Regulation 8 applies when the statutory charge is in favour of a provider of legal aid services (in other words, in cases where legal help or ‘help at court’ have been provided. The Lord Chancellor can permit the provider to waive all or part of the charge when it would cause grave hardship or distress to a legally aided party to enforce the charge; and when enforcing the charge would be unreasonably difficult because of the nature of the property. Regulation 9 allows the Lord Chancellor to waive all or part of the charge when it is equitable to do so and where at the time of granting legal aid, the Director of Legal Aid Casework had been satisfied that the proceedings has a significant wider public interest and that there were other claimants or potential claimants who might benefit from the proceedings.
6.79In
R (Faulkner) v Director of Legal Aid Casework31[2016] EWHC 717 (Admin), [2016] 2 Costs LR 237. Mostyn J rejected a challenge to the (then) Legal Services Commission not to waive the statutory charge which would have the effect of eliminating the damages awarded to Mr Faulkner for breach of Article 5. He held that damages for Convention breaches do not bring immunity with them and are subject to the same costs regime as any other damages.
Experts’ fees
6.80This section should be read in conjunction with paras 12.64–12.78 which discusses the tests that the court will apply in deciding whether to allow the instruction of an expert and on what terms.
6.81Experts’ fees can be claimed as a disbursement on a party’s legal aid certificate. The LAA sets rates which it will agree to pay experts. The current rates were set on 2 December 2013.
32Civil Legal Aid (Remuneration) (Amendment) Regulations 2013 Sch 2. If a certain type of expert is not listed in the remuneration regulations, they will be remunerated at a rate determined by the LAA, which will have regard to the codified rates in setting such a rate. The LAA published guidance on the remuneration of experts in September 2014.
33www.gov.uk/government/uploads/system/uploads/attachment_data/file/420106/expert-witnesses-fees-guidance.pdf. Practitioners will need to be aware of this guidance, which includes indications of typical hours spent in various types of work.
6.82If an expert charges a rate in excess of the current codified rate, the LAA will only pay this if it considers it is reasonable to do so in exceptional circumstances and it has granted prior authority. The LAA considers the following to be exceptional circumstances:
•the expert’s evidence is key to the client’s case, and either
•the complexity of the material is such that a high level of seniority is required, or
•the material is of such a specialised nature that only very few experts are available to provide the necessary evidence.
34Standard Civil Contract 2010 para 6.62, Draft Standard Civil Contract 2014 para 6.61. 6.83Practitioners considering instructing an expert who charges above the codified rates must therefore obtain prior authority before instructing the expert. Practitioners will be expected strictly to demonstrate that the request for prior authority comes within the conditions set out above.
6.84Where the expert charges the rate set by the LAA prior authority may be sought if the item of costs is unusual in size or nature; or if there are no codified rates set for a particular expert.
35Guidance on the Remuneration of Expert Witnesses 4.2, 4.14, 4.15.6.85In all cases where an expert is instructed it is helpful to invite the court to approve the instructions of the particular expert when the court gives permission for the expert to be instructed. Precedents can be found on the Court of Protection Handbook website: www.courtofprotectionhandbook.com. Whether or not the case falls within the Case Management Pilot (see further paras 4.101–4.103), it may be persuasive for the order to make it clear that the court is satisfied that the more stringent test in COPR Pr121 is met; namely that the evidence is necessary to assist the court to resolve the issues in the proceedings and cannot otherwise be provided (see further in this regard para 12.68).
6.86Whilst the Legal Aid Agency’s starting point will frequently be to expect costs of experts to be apportioned equally, the case of
JG v The Lord Chancellor and others36[2014] EWCA Civ 656, [2014] 2 FLR 1218. is a useful reminder that equal apportionment of experts’ fees is not inevitable and will depend on the facts of the case including for whose benefit the report is sought. Black LJ’s judgment contains a review of Strasbourg cases where the securing of expert evidence engaged rights under Articles 6 and 8 ECHR. The guidance on remuneration recognises that equal apportionment will not always be the norm in public law children cases, because some parties may have limited involvement in the case (such as an intervenor),
37Guidance on the Remuneration of Expert Witnesses, 4.5. or because the case concerns children with different fathers and the issue relates to one child only. There are potential analogies in Court of Protection cases. A Trust may be providing inpatient care for P and may thus be a party to an application; but may not have an interest in P’s care arrangements after discharge.
6.87In
AB (A Child) (Temporary Leave to Remove from Jurisdiction: Expert Evidence, Re),
38[2014] EWHC 2758 (Fam), [2015] 1 FCR 164. a family case involving the instruction of an expert in Indian law, HHJ Bellamy noted that neither the Civil Legal Aid (Remuneration) Regulations 2013 nor the LAA’s contract defined the term ‘expert’. He commented:
That is unsurprising. The determination of whether expert evidence is necessary in order to resolve a case justly and whether a particular witness ‘is qualified to give expert evidence’ (s3(1) of the Civil Evidence Act 1972) are issues for determination by the court not by the LAA. I am concerned that in this case the LAA should have disregarded a decision by the court that Mr Kumar is an expert. In my judgment it was not open to the LAA to disregard a judicial decision on this issue.
Very high cost cases
6.88Very high costs cases (VHCCs) are defined in Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 (‘the Procedure Regs’) reg 54(3). These cases are managed under an individual contract which is agreed between the practitioner and the Special Cases Unit and the LAA. For the purpose of Court of Protection cases, the VHCC provisions will apply when the Director of Legal Aid Casework has reason to believe that the actual or likely cost of the case exceed £25,000.
6.89Practitioners will keep the overall costs of any certificated case under careful review. If it appears that the likely costs of the case – taking into account counsel’s fees and disbursements – are likely to exceed £25,000, then the practitioner must follow the steps set out in the LAA’s information pack,
VHCC – A solicitors information pack (non-family) (‘Solicitors Information Pack’).
39Available at: www.justice.gov.uk/downloads/legal-aid/vhccs/solicitors-information-pack.pdf. It is not difficult for a contested Court of Protection case to become a VHCC, particularly if there are substantial interim hearings or experts are used.