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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> JG v The Lord Chancellor & Ors [2014] EWCA Civ 656 (21 May 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/656.html Cite as: [2014] EWCA Civ 656, [2014] WLR(D) 235 |
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ON APPEAL FROM THE HIGH COURT QUEENS BENCH DIVISION
MR JUSTICE RYDER
CO77572012
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE BLACK
and
LORD JUSTICE FULFORD
____________________
JG |
Appellant |
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- and - |
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THE LORD CHANCELLOR & ORS |
Respondent |
____________________
Mr Paul Nicholls QC & Mr Tom Cross (instructed by Legal Aid Agency) for the Respondent
Mr John Howell QC (instructed by The Law Society Legal Service Team) for the Interested Party
Hearing dates : 10th & 11th February 2014
____________________
Crown Copyright ©
BLACK LJ :
The facts
"At a hearing on 15 October 2008 the district judge to whom the proceedings had been allocated considered the proposal and the evidence is that he 'agreed that in the circumstances such an assessment would be beneficial'. That was no doubt intended to amount to permission which would have been required to adduce expert evidence in private children's proceedings in accordance with the rules then in force."
"The parties shall jointly instruct [the psychotherapist] to prepare a report in respect of the child in particular and the family dynamics in general."
"d) The [guardian] shall take the lead in instructing the expert and shall apply for further directions if there are any difficulties in complying with this paragraph.
e) 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 her public funding certificate."
"[The psychotherapist] will be jointly instructed to provide an addendum report concluding her parenting assessment of [the father] and conducting an assessment of his parents….The guardian shall take the lead in instructing the expert….The costs of the addendum report shall be borne by the child the court considering them to be a reasonable and necessary disbursement to be incurred under the terms of her public funding certificate."
"Because he will be handicapped in the presentation of his case without [the assessment], [the father] wants there to be a further attempt to unlock funding for it. He cannot afford such funding himself."
"Unless the LSC have finally determined the application of the guardian for payment of the outstanding fees of [the psychotherapist] or filed at court a letter setting a firm date for that determination the case worker shall attend the [next] hearing to explain the position to the court personally."
"amended to read: "The cost of the expert to be funded by the child the court considering them [sic] 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. In reaching this conclusion the court considered the provisions of section 22(4) of the Access to Justice Act 1999."
"expressed his concern about the delay in the proceedings and the adverse effect such delay may be having on [the child's] welfare. He reviewed the position with a view to setting a date when the court might fully investigate the issues where [the child] should reside and her contact to the non resident parent and seek to reach a final decision on these issues in the light of that investigation."
"shared the District Judge's concern that at this stage because of the refusal of the LSC to deal with the issue of [the psychotherapist's] outstanding fees and to fund work by [another expert] it would not be possible at the planned final hearing in June to properly judge what was in the best interests of [the child] and for [the parents] to have their respective cases properly tested. "
The hearing before Ryder J
"the cost of the report appears to have been attributed to your client's certificate in its entirety. As it is clear the report is of added benefit to all 3 parties, there is reluctance for the LSC to meet all such costs in line with section 22(4) of the Access to Justice Act…"
i) the LSC acted unlawfully in refusing to pay for the report in full;ii) the child's solicitor had a legitimate expectation that the LSC would pay for the report in full.
"….what the court and the Legal Services Commission may do when a child, who is a party to private law proceedings under the Children Act 1989, has the benefit of services funded for her as part of the Community Legal Service and the court considers (a) that it is necessary that it should receive expert evidence on a particular issue in order to assist it to determine what the welfare of the child requires, but (b) that the other parties, who do not have the benefit of such funding, are then unable to pay that expert's fees and expenses"
Ryder J's determination
"…an order which is made in exceptional circumstances to ensure effective access to justice by a party would not contravene s 22(4) of the 1999 Act, because it would not be affected by the fact that one party is legally aided. It would simply be based on the fact that, in order for the expert evidence which the court has considered necessary to the proper resolution of the case to be adduced, the burden of cost must be unevenly shared. Were no party to be legally aided, the same approach would be legitimate. Cases falling within this exceptional description should be rare and for the exceptionality to apply there must have been a careful application of the Rules and Practice Directions…"
Developments between Ryder J's judgment and the appeal hearing
The framework of the law and rules applicable in children cases of this type
The substantive law governing private law proceedings
"This case is clearly [the father's] application for residence and as such, he should pay for the reports, otherwise, the status quo of the mother having residence should continue" (C26)
Such an approach is readily understandable in the context of, say, a civil action for damages; the claimant has to prove his case and unless he pays for and produces such expert report as is necessary, he will fail to do so. However, the reality in children proceedings, where the court is without a necessary expert report, is not that a residence order is simply granted to the mother by default. The court still has to consider the merits and determine what is in the child's best interests but it will have to do so without the benefit of the expert help that it considered was necessary to assist it in its task.
Procedural rules in relation to family proceedings: joinder of the child and appointment of a guardian
"Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases."
"The children's guardian must make such investigations as are necessary to carry out the children's guardian's duties and must, in particular –
(a) contact or seek to interview such persons as the children's guardian thinks appropriate or as the court directs;
(b) obtain such professional assistance as is available which the children's guardian thinks appropriate or which the court directs be obtained."
Procedural rules in relation to family proceedings: expert evidence
"Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings."
"Expert evidence will be restricted to that which is reasonably required to resolve the proceedings." [my italics picking out the difference from the present rule]
"(1) Where two or more parties wish to put expert evidence before the court on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert."
"Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert's fees and expenses."
The reference to "relevant parties" leads back to Rule 25.11(2) where it can be seen that "relevant parties" are "the parties who wish to put expert evidence before the court" which is going to be given by a single joint expert. Rule 25.12(4) provides that the court may give directions about, amongst other things, "the payment of the expert's fees and expenses". It may also, before the expert is instructed, limit the amount that can be paid to him by way of fees and expenses (Rule 25.12(5)).
Former procedural rules
"Principles governing grant of leave – Whether leave will be granted will depend upon the circumstances of the case. Although it may be that the court will take the view that CA 1989, s1(1) does not strictly apply to the decision (Re A and W (Minors)(Residence Order: Leave to Apply) [1992] 2 FLR 154, CA) the court will pay great attention to the welfare of the child in any event. It will also consider the interests of the parties, and the need for a fair hearing at which the issues can be properly determined (Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687, HL) and the delay principle (H v Cambridgeshire County Council [1996] 2 FLR 566, FD). In considering whether to grant leave, the court should seek to identify the issue which forms the basis of the local authority's application, and consider whether it would be usefully addressed by the proposed evidence; leave to obtain expert evidence can be refused on the ground that the evidence does not bear sufficiently on the issue that falls for determination (H v Cambridgeshire County Council (above)). ……"
Section 22(4) AJA 1999
"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."
Section 10 LASPO 2012
"Exceptional cases
(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of theHuman Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
(4) [inquests]"
The parties' positions on the appeal: the general question
a) The appellant's and the Law Society's case on the general question
b) The Lord Chancellor's case
i) "a party's means, assessed following a robust process, are such that he or she cannot afford to pay for his or her share of the report"and
ii) "an order for equal apportionment would involve a breach of a party's Convention rights in the family proceedings because it would prevent an expert report which the court considered necessary to the proper resolution of the case from being adduced".
If the two conditions were satisfied, the Lord Chancellor's case was that the court should still order a single joint expert but could visit a greater share of the costs on the legally aided party than normal, although whether the legally aided party would have to pay all the costs would depend on the circumstances.
c) Points in common and points of difference
When is an expert a single joint expert and when is he genuinely the child's expert?
When the expert is not solely the child's expert
Is equal apportionment actually the normal order where there is no issue over resources?
"The plain meaning of s22(4) would suggest the normal practice in children proceedings is to be followed. That would be to make no order as to costs absent exceptional circumstances. On a joint instruction that would involve an equal apportionment of the overall cost between the parties, funded or otherwise. That is precisely what the Calderdale criteria provide for, just as they provide for the circumstance where the local authority should take a greater or full share of the costs because of the circumstances of the case."
He determined that the costs should be apportioned between the local authority and two of the publicly funded parties, having set out 9 reasons for this (§59). The local authority had, in fact, offered to pay 50% of the costs and Ryder J accepted that a pragmatic and just solution would be for them to do so and for the balance to be split between the funding certificates of the two other parties (§60).
"Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert's fees and expenses."
When the court can depart from the order it would otherwise have made – Convention considerations
a) Breach of Convention rights
"Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable to effective access to the court, either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case (see Airey v Ireland, 9 October 1979 §26, Series A no. 32). In discharging its obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6"
"it must be determined whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests." (§52)
"…taking into account the importance of the subject-matter, namely, the relations between a father and his child, the Regional Court should not have been satisfied by relying on the file and the written appeal submissions without having at its disposal psychological expert evidence in order to evaluate the child's statements." (§52)
"The combination of the refusal to order an independent psychological report and the absence of a hearing before the Regional Court reveals, in the Court's opinion, an insufficient involvement of the applicant in the decision-making process. The Court thus concludes that the national authorities overstepped their margin of appreciation, thereby violating the applicant's rights under Article 8 of the Convention." (§53)
"….because of the lack of psychological expert evidence and the circumstances that the Regional Court did not conduct a further hearing although, in the Court's view, the applicant's appeal raised questions of fact and law which could not adequately be resolved on the basis of the written material at the disposal of the Regional Court, the proceedings, taken as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of Article 6(1)." (§65)
b) A very exceptional case
c) Impecuniosity
The specific question
"[90] ….Even if the purpose of the instruction had been clear to this court (i.e. to what key issue did the evidence go), which regrettably it was not, and even if this court accepts that a rigorous scrutiny of the parents' means was undertaken, the real barrier to the claim is the fact that the decision to make the expert an SJE was a device to permit if not engineer a funding decision in circumstances where the father said he could not pay but apparently needed the evidence. When that did not succeed, what followed was an ex post facto allocation exercise which might have been legitimate if it had occurred in the manner described above but which was hardly a sound basis to criticise the LSC for illegality.
[91] The order of 22 April 2009 contravened s 22(4). The court's decision was affected by the fact that the child was in receipt of community legal service funding. The reason why the court ordered that the child pay for all the costs of the report was that she was in receipt of community legal service funding and so she, or more accurately the LSC, was deemed able to afford those costs whereas the other parties were deemed unable to do so…."
"The District Judge was prepared to direct that [the psychotherapist] undertake an assessment in this particular matter to see if we could move things on and the necessary directions were made. The District Judge prepared a typed Order, a copy of which appears in the file."
That is all there is on the subject of the psychotherapist's instruction. There is nothing to suggest that either of the parents contributed anything on the subject, and certainly nothing to lead one to believe that they were seeking to have an expert involved.
FULFORD LJ:
RICHARDS LJ: