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Who pays for the expert? - JG v The Lord Chancellor

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Chris Butterfield, from 29 Bedford Row, discusses the impact of JG v The Lord Chancellor and Others [2014] EWCA Civ 656 in which the question of the funding of an expert in private children law proceedings was considered.

  • 1. In JG v The Lord Chancellor and Others [2014] EWCA Civ 656, the Court of Appeal has considered the question of the funding of an expert in private law children case where both parents represented themselves and could not afford to pay the experts' fees. This scenario is increasingly common given the abolition of legal aid for most private law children cases. The case was previously reported at first instance as JG (A Child) v Legal Services Commission and Others [2013] 2 FLR 1174.

    The facts of the case

    2. This was a protracted residence dispute concerning a 10 year old child in which both parents represented themselves. Two years into the proceedings the court joined the child as a party, represented by a children's guardian who had the benefit of a legal aid certificate. The children's guardian invited the court to permit the instruction of a psychotherapist to prepare a report on the family. The district judge granted permission and ordered that the parties should jointly instruct the psychotherapist, that the guardian's solicitor was to take the lead and that the cost of the report was to be funded entirely by the child's legal aid certificate. The Legal Services Commission (as it then was) refused to pay more than a third of the costs and argued that the costs should have been split equally between the parties. The parents could not afford to pay.  

    3. The children's guardian applied for judicial review of the LSC's decision not to pay the entire cost of the expert. The Law Society and the Lord Chancellor both intervened. The matter came before Ryder J at first instance and he refused the application for judicial review. The children's guardian appealed.   

    The appeal – "the general question"

    4. The Court of Appeal considered not only the specific facts of this case, but also the general question of what the court and the Legal Aid Agency may do when a child who is a party to private law proceedings has the benefit of public funding and the court considered that expert evidence is necessary but the other parties are unable to pay the fees and expenses of that expert evidence. Although Black LJ expressed considerable unease that judicial review proceedings were used to consider this general question in the abstract, she nevertheless went on to consider the question is some detail. 

    Whose expert is it?

    5. Black LJ considered in some detail when an expert was a single joint expert and when an expert was genuinely the sole expert of the child. She noted that rule 25.11(1) of the Family Procedure Rules provides that a court may direct the instruction of a single joint expert "where two or more parties wish to put expert evidence before the court on a particular issue." She concluded that the power in rule 25.11 does not extend to forcing a party who was not seeking to instruct an expert himself to join in the instruction of an expert that another party has invited the court to approve.  

    6. The question of whether an expert is a single joint expert or an expert of one of the parties is fact sensitive and has to be considered on a case by case basis. In this case, neither parent had raised the possibility of an expert prior to the involvement of the children's guardian. The idea for the expert came from the guardian, who prepared the draft letter of instruction. Black LJ held that on these facts the correct starting point was that the expert's report was genuinely sought by the child alone. She considered that the involvement of the parents in the instruction of the expert (by having the letter of instructing and CV served on them) did not turn the expert into a single joint expert. Even where the parents are required by the court to be involved in the selection of the expert, that would not necessarily mean that it was a single joint instruction. Neither would putting questions to the other party's expert necessarily be sufficient to convert the expert into a single joint expert. Black LJ concluded that it would not be infrequent that an application by a child for permission to instruct an expert would genuinely be for an expert on behalf of the child alone rather than a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court. Where an expert was solely the child's expert the child's public funding certificate should usually bear the whole cost.

    7. In this case the instruction of the expert had not been a joint enterprise of all the parties and the costs order was not a device to overcome the parents' inability to contribute to the expert's fees. The essential question was who was seeking the instruction of the expert and in this case it was the children's guardian alone. So it was right that the children's public funding certificate should pay the whole of the cost. This was sufficient to determine the appeal. However, Black LJ went on to consider what the court could do if the expert was in fact a single joint expert but the parents were unable to pay.

    Who pays if the expert is a single joint expert?

    8. Black LJ then went on to consider the situation where the expert was not solely the child's expert. The Lord Chancellor argued that in most circumstances section 22(4) of the Access to Justice Act 1999 prevented the court from doing anything other than ordering an equal apportionment of the costs. Section 22(4) provides:

    Except as expressly provided by the Regulations, any rights conferred by or by virtue of this Part on an individual for whom services are funded by the Commission as part of the Community Legal Service or Criminal Defence Service in relation to any proceedings shall not affect –

    (a) the rights or liabilities of other parties to the proceedings, or

    (b) the principles on which the discretion of any court or tribunal is normally exercised.

    9. The Lord Chancellor argued that subjection (b) meant that where a court would otherwise have ordered an equal apportionment of the expert's costs, it could not order the publicly funded party to pay the entire costs simply because the other parties could not afford to pay.

    10. Black LJ first considered the question of what the court would otherwise have ordered. She held that there was no "normal rule" of equal apportionment of costs, notwithstanding rule 25.12(6) of the FDR which provides that "Unless the court directions otherwise, the relevant parties are jointly and severally liable for the payment of the expert's fees and expenses." While a court would commonly make an order for an equal apportionment of the costs, that was not always the case. Black LJ referred to previous case law, mainly within care proceedings, in which the factors which the court may take into account are considered. She concluded that the court has a discretion as to what order is made as to the costs of instructing experts in family proceedings and that discretion must be exercised bearing in mind all the circumstances of a particular case.  

    11. If the court would otherwise have made an order for an equal apportionment of the expert's costs, in order to depart from that, two conditions are necessary:

    a. The other parties must be impecunious. The fact that a party might be financially eligible for legal aid might be a relevant factor in assessing impecuniosity, although it is not a necessary qualification, not least because the court will not always be in a position to assess whether a party would be financially eligible for legal aid. Black LJ held that in some cases it will be necessary to give directions to secure the necessary financial information from the parties.

    b. The inability to instruct an expert must constitute a breach of the Convention rights of one of the parties (including the child). Black LJ considered that by the time the guardian had endorsed the instruction of an expert and the court had considered it necessary, there would be the beginnings of a strong foundation for an argument that the child's Article 6 or Article 8 rights would be violated if the court could not be provided with that expert assistance.

    12. Black LJ specifically rejected a third requirement that the case must be a very exceptional one. She considered that this would distract from the central question of whether there would be a breach of a party's Convention rights.

    13. The judgement considers some of the practical implications. She concluded that there might be some cases where the apportionment of the parties' costs could be settled at the outset. There may be others in which that would import harmful delay and in which there would be no option but to require the guardian to instruct the expert in the first instance with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order. However, the court would not embark on that route without some cogent evidence that the other parties would not able able to pay their way.

    Lessons for future cases

    14. This judgment provides two useful mechanisms by which a court may obtain expert evidence where neither parent can afford to pay but where the child is a party to the proceedings.Firstly it may order the child's public funding certificate to bear the entire cost of the expert where the expert is in reality instructed solely by the child. Secondly, the court may order the child's public funding certificate to bear the entire costs even of a single joint expert where (a) the other parties are impecunious; and (b) the non-availability of the expert evidence would constitute a breach of a party's Convention rights.  

    15. Black LJ concluded her judgment by stating:

    'I would simply add that when judges are called upon to deal with the sort of difficult issues that have arisen here, it would be prudent for them to explain their reasons for each decision that they take in a short judgment and for their orders to be precisely spelled out. It goes almost without saying that solicitors should be careful to avoid disputes of the type that has arisen here by seeking prior authority for any instruction of an expert.'

    16. In order to try to avoid problems arising, practitioners will therefore need to make sure that these issues are addressed head on at the outset, that judges are asked to give reasoned judgments and that orders are precisely spelled out. It will also be necessary to follow Practice Direction 25 closely in advance of the hearing so that the judge has sufficient information to be able to make decisions which should be recorded on the face of the order.

    17. However, the judgment leaves a number of issues uncertain:

    a. The distinction between a single joint expert and one instructed by one of the parties may be a fine one, particularly where all the parties are involved in the mechanics of the instruction.

    b. When can a party be said to be impecunious? Where, for example, a party is in receipt of certain state benefits it may be obvious. But there will be many cases in which it will be less so. In Children Act proceedings the court is ill equipped to assess the parties' financial resources.

    c. When precisely will a lack of expert evidence infringe a party's Article 6 or Article 8 rights? Black LJ's judgment suggests that the hurdle will not be particularly high where a children's guardian and the court consider that expert evidence is necessary.

    d. What happens when the child is not separately represented and neither parent can afford to pay for expert evidence?


Published: 09/06/2014

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