Can courts force solicitors to be liable for expert fees?
How can firms avoid ending up out of pocket when a court orders them to instruct an expert witness, and the Legal Aid Agency (LAA) will only agree to pay half the bill? Carol Storer explains.
Nearly a third of expert witnesses in a recent survey said they had been asked, or felt pressured, to change their report in a way that damaged their impartiality (Bond Solon, 2014 annual expert witness survey). No wonder the introduction of single joint experts caused such a stir at the time.
But impartiality (or lack of it) is not the only problem that lawyers face with expert witnesses. Set fees were intended to tackle the problem of some experts overcharging; but practitioners now say they can’t always find suitably qualified people to work for legal aid rates.
Another issue which is being raised by Legal Aid Practitioners Group (LAPG) members is over who has responsibility for paying expert fees, where one party is legally aided and the other is a litigant in person. We were recently contacted by a lawyer where the court had ordered his firm’s client to have drug testing, but the LAA is refusing to pay the full amount.
He says: ‘I have explained that the judge ordered that these costs were reasonable on our client’s certificate and the other side was acting in person, but the LAA is insisting that it does not have to accept what was ordered and will only pay a half share.’
The firm stands to lose about £300 if the LAA doesn’t back down. The lawyer in question wanted to know how to challenge the agency’s position. ‘I really want to argue this but I’m not sure how to. Can we really refuse to follow what has been ordered? Can the LAA really expect us to? This just doesn’t seem right and could end up costing us thousands of pounds if we don’t deal with it now before it becomes a problem.’
We turned to our committee member Wendy Hewstone, managing partner of family legal aid firm Access Law, for her views: ‘The case of JG v Lord Chancellor ( EWCA Civ 656, 21 May 2014) is relevant but basically I would never accept the court order as binding. The LAA always expects you to charge those sorts of disbursements between all parties and I would never incur the whole cost in such a case without prior authority.’
Her firm’s staff have had heated discussions with judges when they have tried to order them to take all the costs if there is a litigant in person on the other side. ‘Where we have refused to take that on, the judge eventually concedes. I am surprised this is only being raised now, as it has been that way for a long time. Section 22(4) of the Access to Justice Act 1999 applies.’
Another LAPG committee member, Beverley Watkins of Watkins Solicitors, agrees: ‘It does not really matter what the court ordered. Historically the LAA would pay if ordered, but it did not happen very often as there were so few litigants in person. I have a case which went on for years, where we were ordered to pay the total costs of hair strand testing approximately five years ago. We agreed, as there was no issue at the time. However, the file has recently finished and I anticipate that we will only be paid half.’
‘Fee earners need to be alert to when court orders say they are responsible for the cost of experts’ fees and be ready to challenge if necessary.’
The case of JG suggests in certain circumstances the LAA may pay all costs, but as well as prior authority, Watkins says you also need a court order setting out why there are exceptional circumstances, which mean the LAA should be responsible for all the costs. ‘Otherwise, we have little hope of the LAA paying it all.’
She adds that fee earners need to be alert to when court orders say they are responsible for the cost and be ready to challenge. ‘If ordered, ask for prior authority before instructing. If refused, return the matter to court and ask for the order to be amended – a court cannot order solicitors to be responsible for fees!’
In her area, Bristol, there is a pilot scheme where Cafcass pays for hair strand or DNA testing. The Ministry of Justice is looking at the feasibility of extending the pilot to the rest of England and Wales.
At a recent meeting in Bristol, between ministry officials and local solicitors, there was consensus it is working well and has helped solve some seemingly intractable cases, where family contact is now taking place because of the testing made possible by the scheme.
Ranjit Uppal of Switalskis (pictured) agrees that a court order carries no weight with the LAA. His firm’s approach is not to agree to orders that the legally-aided party pays. ‘We get the order on the basis that we will then apply for a prior authority before doing anything. If prior authority is refused, we go back to court to change the order.’
In some cases, the LAA’s refusal to agree the whole fee can hinder the court’s ability to make a fully informed decision, for example, in a case where there is an allegation of drug use. ‘The court may feel it cannot make a child arrangement order because there remains an unassessed risk. This is far from satisfactory but in some situations a judge cannot conduct a risk assessment,’ Uppal says.
The LAA’s position is set out in its April 2014 Guidance on authorities and legal aid for cases in courts outside England and Wales
.1Available at: www.gov.uk.