Who’s footing the bill for the expert?
When obtaining an expert’s report, it’s important to ensure you know who’s going to pay for it, or you may find yourself out of pocket.
Practitioners can lose significant amounts of money because they are obliged to pay experts’ fees that are not covered by legal aid.
Legal aid rates for experts have been codified since 3 October 2011. Revised rates have applied to cases started (or with representation orders dated) on or after 2 December 2013: the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013 SI No 2877 and the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 SI No 2803 (together, the Remuneration Regulations).
The Legal Aid Agency has published Guidance on the Remuneration of Expert Witnesses. It sets out the maximum rates for different types of expert witness, how to apply for prior authority, time guidelines, benchmarks for working ‘unusual’ hours, expert witness standards in family matters and arrangements for specific experts (eg independent social workers, risk assessment, drug and alcohol testing and DNA testing).
The guidance was updated in April 2015 following a process involving discussion with practitioners, who, although they still had some unresolved concerns, felt it was more helpful as a result. Updates included experts on foreign law, transcripts, translation and communicating with clients at court.
The LAA cannot pay fees or rates in excess of those in the Remuneration Regulations unless they fall under the definition of ‘exceptional circumstances’ (Civil Legal Aid (Remuneration) Regulations 2013 SI No 422 reg 10 and Sch 5 para 2) and the LAA has granted prior authority to exceed them (Sch 5 para 2(2)). The expert’s evidence must be key to the client’s case and exceptional circumstances are where either:
(a)the complexity of the material is such that an expert with a high level of seniority is required; or
(b)the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.
Costs and the courts
A significant pitfall can occur if a judge orders the cost of an expert’s report and the LAA subsequently declines to pay for it. This often relates to how the fees should be apportioned between the parties. Somewhat confusingly, the LAA’s general guidance is contained in Guidance on authorities and legal aid for cases in courts outside England and Wales. This was updated in September 2014 to reflect the judgment in JG v Lord Chancellor and others  EWCA Civ 656, 21 May 2014.
LASPO s30(1) provides that the existence of legal aid cannot affect a court’s general approach:
Except as expressly provided by regulations, any rights conferred by or under this Part on an individual for whom services are provided under this Part for the purposes of proceedings do not affect –
(a)the rights or liabilities of other parties to the proceedings, or
(b)the principles on which the discretion of a court or tribunal is normally exercised.
A disbursement cannot be transferred to a legally aided party simply because they are legally aided.
The LAA takes a strict view that this means the responsibility for a disbursement cannot be transferred to a legally aided party simply because they are legally aided.
In JG, the judge in residence proceedings had directed that expert’s fees should be borne by the child alone (the parents were privately funded). The then Legal Services Commission declined to meet the costs and this was judicially reviewed. The Court of Appeal declined to make a general finding of principle, but concluded that the normal order in JG’s case would have been for the child to meet the costs of this report in full, irrespective of her legally aided status.
A careful approach
The LAA accepts there may be some cases where apportionment is not appropriate, eg where a direction is given under Family Law Reform Act 1969 s20(6), which states that the party on whose application the direction is given will bear the costs of a scientific test. In public family law cases, a party may be an intervenor and have limited involvement, so it would be inappropriate for them to bear an equal share of report costs.
In private law cases, anything other than an equal apportionment of costs between the parties is considered unusual by the LAA. Practitioners are strongly advised to resist orders requiring them to obtain an expert’s report without first obtaining prior authority from the LAA. ■