JG, a ten year-old child acting by her litigation friend and guardian, sought to judicially review the Legal Services Commission’s refusal to fund more than one third of the cost of an expert report. JG’s parents’ had separated and her father made an application under the Children Act 1989 to determine her residence and contact arrangements. The parties to the family law proceedings were JG’s parents, both of whom were litigants in person, and JG, who was in receipt of public funding. JG’s solicitors proposed to instruct an expert. In April 2009 the court directed that the cost of the expert’s report was to be "funded by the child, the court considering it to be a reasonable disbursement to be incurred under the terms of her public funding certificates." JG’s solicitors did not seek prior authority from the LSC in respect of the expert’s fees. A report was prepared by Dr D at a cost of £12,000 and JG’s solicitors made a claim to the LSC accordingly. Dr D recommended that an addendum report be undertaken to include a further assessment of the child’s father in the context that he lived with his own parents. The Court made an order to that effect in May 2011 but Dr D refused to undertake that addendum report until his outstanding fees were paid. This was a matter of particular concern to JG’s father and a recital recorded that he "will be handicapped in his presentation of his case without it." In November 2011 the court ordered the LSC to explain its position in relation to the payment of fees. Upon consideration of representations made by the LSC, in December 2011 the Court purported to amend the order from April 2009 to read as follows:
"The cost of the expert [is] to be funded by the child the court considering them to be a reasonable and necessary disbursement under her certificate and the purpose of the report is solely to establish what arrangements are in her best interests. Furthermore, the court has carried out a means assessment of both parents and found that they are unable to afford any part of these fees …"
The LSC maintained that it would not fund more than one third of the cost of the report. JG’s father decided not to pursue his residence application so the addendum report was no longer required. Judicial review proceedings were brought by JG challenging the lawfulness of the LSC’s decision not to fund more than one third of the cost of the original report. The Law Society and the Secretary of State for Justice intervened in those proceedings. Ryder J recognised that there were sound reasons, recognised in the decided cases, why there should be an apportionment of costs in cases where there is joint expert evidence and that it will only be appropriate to depart from the principle of equal apportionment in exceptional cases (at para 51). He went on to say at paras 75-76):
"Where the court has genuine reason to believe that a non-legally aided party may not be able to pay in full for the expert evidence on an equal apportionment basis, the court must undertake a robust scrutiny of that party’s means. Courts should not accept that a person does not have sufficient means simply on the basis of an assertion to that effect by the party looking to avoid payment.
What is a robust scrutiny will depend on the circumstances of the case. An important consideration, however, should be the party’s financial eligibility for legal aid where that still exists. If the party would not qualify for legal aid on the basis of their means, this is a factor which should point very strongly in favour of that party having to pay their full share of the cost of an expert’s report."
Ryder J accepted that if the LSC pays the costs of a report on behalf of a person who does not satisfy the criteria for eligibility, that person in effect obtains the benefit of legal aid payments to which he or she is not entitled. He went on to consider the application of Articles 6 and 8 ECHR in the context of family law proceedings and commented (at para 87):
"… At the point where a court has exhausted all of the ordinary mechanisms to obtain evidence that is necessary in order to make a decision that is in the best interests of a child, an access to justice argument may arise. The court like the LSC is a public authority. The LSC (or more accurately now the Legal Aid Agency through the Director of Legal Aid Casework) is required by section 10 of the 2012 Act to make civil legal services available to an individual where it is necessary to make the services available if (a) failure to do so would be a breach of that individual’s Convention rights or any enforceable EU rights to the provision of legal services or (b) it is appropriate that they should be provided having regard to the risk that failure to do so would involve such a breach. The saving provision in the new legal aid scheme succinctly reflects a similar obligation upon the court but the exceptionality of the language should be noted."
Ryder J considered that the orders made by the court were unlawful because the court’s decision was affected by the fact that JG was in receipt of public funding. He summarised the relevant principles as follows:
- In the ordinary course, where a single joint expert is instructed, the parties should bear the cost of the report equally.
- The court may not make any different order from that which would ordinarily be made because a party is in receipt of legal aid.
- Where a court has made an order that a party in receipt of legal aid should bear a certain cost, the LSC has the power to refuse to provide funds for those costs, as long as its refusal is no irrational or otherwise unlawful in a public law sense.
On the facts of this case, the LSC’s response was not unlawful. In the course of the judgment, Ryder J noted that was a duty on JG’s guardian in the family law proceedings to "
obtain such professional assistance as is available which the children’s guardian thinks appropriate or which the court directs be obtained". The Court stated (at para 15):
"That obligation has been the most elusive component of this case, encapsulating as it does something which the children’s guardian almost certainly intended in the suggestion made to the child’s solicitors: a suggestion which was not carried through into the case management decisions of the court. Had a rigorous analysis occurred of the reason for the request for the expert i.e. its purpose and who wanted it and who might benefit from it, the order in the case would have reflected not what eventually appeared, namely that the child’s father in this case would be hampered in the presentation of his case without the expert’s report but, that the report was necessary to enable the children’s guardian to perform her duties. Alas, the papers do not provide a clear answer to the question why the children’s guardian could not advise the court from a social work perspective about family relations and functioning or the impact on the child as one would expect if a guardian was saying ‘I need assistance to do my job’. There is no reasoning on the face of the orders of the court or in any record of its proceedings which provides an analysis of what the report was for and hence whether it should have been a report commissioned and funded by one party or a single joint expert report commissioned by all." (Emphasis added)
Although this decision concerns public funding for an expert report in family law proceedings, there are some parallels with proceedings in the Court of Protection. As such, where an order for expert evidence has the effect of placing a disproportionately high cost burden on the party or parties in receipt of funding from the Legal Aid Agency, it would be prudent to record the reasons for this on the face of the order. Those readers with an interest in these issues may also wish to consider the judgment in R(T) v Legal Aid Agency  EWHC 960 (Admin), which we will cover in the next issue of the newsletter.