JG v the Lord Chancellor and Ors  EWCA Civ 656 ( Court of Appeal (Richards, Black and Fulford LJJ)
In a very important decision whose ramifications extend well into the CoP field, the Court of Appeal held that a decision by the Legal Services Commission (now the Legal Aid Agency) not to fully fund the cost of an expert report ordered in private law proceedings under the Children Act 1989, where the child had a public funding certificate but the parents did not, was unlawful (the High Court on a judicial review application had held the decision to be lawful).
A father made an application for a residence and/or contact order in respect of his daughter who was living with her mother. Neither parent was in receipt of public funding and both acted in person. The child was later joined as a party and granted a public funding certificate (which is only done in exceptional circumstances). The child was represented by a solicitor and a children’s guardian. According to the judgment in the judicial review claim, shortly after the child became an assisted person, the children’s guardian suggested to her solicitors that it might be appropriate to seek expert evidence. The child’s solicitors identified an expert, compiled draft instructions and served them on the parents. The District Judge hearing the case subsequently gave directions about the expert report, including that “the cost of the report to be funded by the child, the court considering it to be a reasonable and necessary disbursement to be incurred under the terms of the public funding certificate”. The expert produced a report and sent an invoice to the child’s solicitors in the sum of £12,000. The LSC refused to pay the invoice in full, stating that the cost should be shared equally between the parties. It relied on section 22 (4) of the Administration of Justice Act 1999 (“section 22(4)”) which held (in summary) that the fact that a person is publically funded should 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. The LSC refusal to pay delayed the case (the expert had been asked to provide an addendum report and was refusing to do so until payment was made on her first invoice). The apparent impasse led to a judicial review claim brought by the child against the LSC for refusing to pay the invoice.
Ryder J heard the judicial review claim. He found against the child in relation to the specific issue under scrutiny, namely the refusal of the LSC to fund the whole of the costs of an expert instructed to assist the family court in its determination of the welfare issues in the case. He also addressed what was described as a question of general importance, which concerned the approach that could be taken where the family court considered that expert evidence was necessary but the only means to pay for it was through the child’s public funding certificate. In relation to the general question, Ryder J again found against the child and accepted the approach suggested by the Lord Chancellor which proceeded on the basis that normally a single joint expert should be used and the expert’s costs should be apportioned equally between the parties. Only in exceptional circumstances where the court forms the view, on proper scrutiny of a party’s means, that one or more of the non-legally aided parties is unable to fully pay the costs the court would otherwise expect that party to pay may the court consider that whether other parties should pay more than an equal share so as to ensure that the evidence which is necessary may be adduced in the child’s best interests.
Black LJ gave the reasoned judgment of the Court of Appeal with which Richards and Fulford LLJ agreed.
The Court of Appeal’s judgment addressed both the general question and the specific question posed by Ryder J in the judicial review proceedings but in respect of the general question it was noted that it did not form part of the ratio of the decision and that there was no universally applicable answer and everything depended on the facts of the case under consideration.
The general question
The judge first considered the question of whether the expert was, in fact, a single joint expert or was, more properly analysed, the child’s expert. If the expert was, on a proper analysis, the child’s expert then the issues in relation to funding did not arise in the same way.
In considering this aspect the judge referred to the facts of the case, noting that neither parent had raised
the possibility of an expert prior to the involvement of the guardian despite litigation having been on foot for a significant period of time. The idea seemed to have come from the guardian and the child’s solicitors identified the expert and drafted instructions. The guardian would only initiate such an instruction if it were for the benefit of the child. The judge held that on facts such as those, the correct starting point would be that the expert’s report was genuinely sought by the child alone with the result that it would fall in the category of case in which the Lord Chancellor had accepted that it was legitimate for the legally aided party to bear the full costs.
The judge then addressed the question of whether the involvement of the other parties in the instruction of an expert would make a material difference and concluded that the answer will be fact sensitive. It was clear that the mere service of the expert’s CV on parents or the service of draft instructions would not change the child’s expert into a single joint expert. The expert was only a single joint expert if he provides expert evidence for use in proceedings on behalf of two or more of the parties (Rule 25.2 FPR 2010). The rules explicitly acknowledged that parties may communicate with and even take the benefit of an expert instructed by another party without that expert becoming a single joint expert. Making use of another party’s expert report as evidence at a hearing did not convert the expert into a single joint expert.
The judge concluded that it may not be all that infrequent that an application by a child/guardian for permission to instruct an expert will genuinely be for an expert on behalf of the child as opposed to a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court and into the format of the expert’s instruction.
The judge then addressed the situation where the expert was not the child’s expert but a single joint expert and the other parties were unable to contribute to the cost of the expert. The issue was in what circumstances public funds could be required to meet the whole cost.
The judge first held that equal apportionment was not the ‘normal rule’ when there was no issue over resources. The court had a discretion as to what order was made as to the cost of instructing experts in family proceedings and that discretion must be exercised bearing in mind all the circumstances of the particular case. The judge held that Rule 25.12(6) FPR 2010 did not establish a ‘normal rule’ that the cost be apportioned equally. It followed that in order to decide whether a court order has fallen foul of section 22(4) it was not enough to say that the ‘normal rule’ had not been followed in order to take advantage of the fact that someone was publically funded, instead a more sophisticated exercise was required. It was necessary to ask what order the court would have made in its discretion on the particular facts of the case, leaving aside any resource problems. The answer might be equal apportionment but it might also, depending on the particular facts, be that the publically funded party should pay a greater share of the costs.
The judge then considered the question of when the court could depart from the order that it would otherwise have made, to the greater cost of a publicly funded party or parties.
Given the role of the child’s guardian in family proceedings, by the time the guardian has endorsed the instruction of an expert as appropriate and the court has approved it as necessary there were the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights would be violated if the court could not be provided with the expert assistance. Whether that argument ultimately succeeded would depend on the precise nature of the decision to be taken in relation to the child. There was no requirement for an additional hurdle or test of “exceptionality”. It was also not necessary for parties to satisfy the financial criteria for legal aid in order to be treated as impecunious. However, eligibility for legal aid was a relevant factor in determining a party’s means.
Given the difficulty in forecasting when financial information would be available to the court the stage at which the court can reach a final determination as to whether a departure from the order it would usually have given for Convention reasons is likely to vary. There may be cases in which the decision can be taken before the expert is even instructed. There may be others in which the absence of readily available financial information would or may import harmful delay into the proceedings and in which it would be necessary to require the guardian to instruct the expert in the first instance but with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order. The court would require cogent evidence that other parties would not be able to pay their way before going down that route.
The specific question
The idea of the expert was the guardian’s and what was before the district judge giving directions was the guardian’s proposal that the expert should be instructed. The district judge agreed that such an expert report was necessary. Had matters stopped there, there could have been no possible objection to the cost of that expert evidence being attributable to the child because it was the child who was going to put that evidence before the court. The guardian then went on long term sick leave and there was a gap before a new guardian was appointed. At a subsequent hearing the district judge made an order that the parties jointly instruct an expert with the guardian taking the lead and the cost being funded by the child. It did not appear that the parents contributed anything on the subject of the expert and there was nothing to suggest that they were seeking to have an expert involved. It followed that the report was, in substance, ordered at the request of the guardian in order to address issues that needed to be addressed in the interests of the child. The fact that other parties may have an input into the report does not convert it into their report or necessarily render them liable for the costs of it. What mattered was the substance of the transaction. It was solely the child’s expert report and should have been paid for fully by the LSC.
The appeal against Ryder J’s dismissal of the child’s judicial review claim was allowed and a declaration made that the LSC’s decision not to meet the cost of the expert’s report was unlawful.
Where judges have to deal with difficult issues such as this 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. Solicitors should be careful to avoid disputes such as this by seeking prior authority for an instruction of an expert.
Despite Black LJ stating expressly that her remarks on the general question were obiter and may not be of much assistance, there is no doubt that lawyers will draw on the judgment in future to resolve cost disputes in family proceedings (and to inform the instruction of experts in general). We also sure that her comments will also be used in other areas – most obviously the Court of Protection – where there is a similar overriding requirement that the decision be taken in someone’s best interests and the failure to have access to an expert’s views would infringe a person’s Article 6/Article 8 rights (despite the focus on the FPR 2010).
The answer in the end in this case was that the expert report was solely the child’s report (sought by the guardian in the interests of the child) and not, properly analysed, a joint report. We think there will be many instances in the COP where an expert report is sought by P’s litigation friend (for example to assess capacity) where it could be said that the report is solely P’s and not that of the other parties. We await the repercussions, and any examples of the case being cited in argument or in judgments before the CoP would be very much appreciated.