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IN THE FAMILY COURT SITTING AT DERBY
Case No. DE17CO0154
Before His Honour Judge Clifford Bellamy
(Judgment handed down on 8th August 2017)
Re J (Care Proceedings: Apportionment of Experts' fees)
William Horwood, counsel for the local authority
Kathleen Hayter, counsel for the child
The parents appeared in person.
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates and any other persons identified by name in the judgment itself may be identified by name and that in particular the anonymity of the child, the adult members of his family and their location must be strictly preserved.
- Derby City Council ('the local authority') applies to the court for a care order in respect of a baby boy, J. J is now three months old. On 27th May J's parents became concerned about swelling to his head. They took him to hospital where a CT scan was undertaken, J was found to have sustained bilateral parietal skull fractures and a small right-sided subdural haemorrhage. It is the local authority's case that J's injuries are non-accidental injuries and that one or other of the parents is responsible for causing them.
- The Children's Guardian ('the guardian') applied to the court for permission to instruct two medical experts. I was satisfied that the proposed expert evidence is 'necessary' for the purpose of s.13(6) of the Children and Families Act 2014. I granted the application. The proceedings come before me now to determine how the experts' fees should be apportioned between the parties.
- Although the parents originally consulted solicitors they are now, through choice, litigants in person. I have explained to them that these are complex proceedings with the potential for a very serious outcome should the court find that the injuries are non-accidental injuries and that one or other or both of them is responsible. If the court were to make that finding then given J's young age there is a real possibility that the local authority's final care plan may propose that J should be placed for adoption. For that reason I have made it very clear to the parents that it would be in their best interests to seek professional representation. They understand that legal aid is available for that purpose and that legal aid will cover all of their legal costs. I am satisfied that the parents have understood the points I have explained to them. They have nonetheless decided that they wish to continue to act as litigants in person. Though I am in no doubt that that decision is unwise, it is their choice and I respect it.
- The parents' decision gives rise to a problem. Had the parents been legally aided I would have ordered that the fees of the experts be shared equally between all four parties. That would have meant that the three legally aided parties (the parents and the child) would between them have been responsible for payment of 75% of the experts' fees and the local authority would have been responsible for the other 25%.
- The parents live separately. Neither of them has any other children to support. Neither is in employment. The mother is in receipt of State benefits of £75 per week. The father receives a New Enterprise Allowance of £72 per week. He is hoping to set up his own business. At the moment that remains an aspiration rather than a reality. Neither parent has any capital. On the basis of that information I am satisfied that the parents cannot afford to make any contribution towards the experts' fees. Ordering them to make a contribution would be a futile gesture.
- That leaves two parties who are able to pay, the local authority and the guardian, the latter having the benefit of legal aid. A direction that the experts' fees be shared equally between the guardian and the local authority would, in real terms, mean that the Legal Aid Agency would pay less that it would have to pay if the parents were legally aided. Although the guardian would be ordered to pay 50% instead of 25%, had the parents been legally aided the reality is that the Legal Aid Agency would have had to pay 75%. There is, therefore, a notional saving to the Legal Aid Agency of 25% of the total costs of the fees of the two experts. If any party is entitled to feel aggrieved by that outcome it is not the guardian (funded by the Legal Aid Agency) but the local authority. The local authority would have to pay 50% instead of 25%.
- There is a second problem. Paragraph 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013 provides that:
'Subject to paragraph 2, where the expert service is of a type listed in the Table, the Lord Chancellor must pay remuneration to the provider for the expert service at the fixed fees or at rates not exceeding the rates set out in the Table.'
There then follows a Table setting out a list of different categories of expert alongside which is the permitted maximum hourly rate for that expert.
- There is some limited scope to exceed these limits. Paragraph 2 of Schedule 5 provides that,
'(1) The Lord Chancellor may increase the fixed fees or rates set out in the Table after paragraph 1 if the Lord Chancellor considers it reasonable to do so due to exceptional circumstances.
(2) In sub-paragraph (1), "exceptional circumstances" mean that the expert's evidence is key to the client's case and either—
(a) the complexity of the material is such that an expert with a high level of seniority is required; or
(b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.'
- Where an expert proposes to charge more than the Legal Aid Agency maximum allowable hourly rate the legally aided solicitors can apply to the Legal Aid Agency for prior authority to exceed the prescribed maximums. If prior authority is granted the solicitors will be assured that the experts' fees will be paid in full by the Legal Aid Agency. If prior authority is refused, or if the solicitor proceeds without even applying for prior authority, the solicitor takes a risk that her firm will have to pay the difference between the amount actually paid to the expert and the amount the Legal Aid Agency will pay on the basis of the Table of prescribed hourly rates for that particular expert. That is a risk that most solicitors are unwilling to take. It is a risk that they should not be expected to take. It is a risk they cannot be compelled to take.
- To apply for prior authority a solicitor must complete a prescribed form in which she must set out very clearly, and with the provisions of Schedule 5 paragraph 2 firmly in mind, the hourly rate sought by the expert concerned and the reasons why that rate is justified in the circumstances of the particular case. The application must be submitted to the Legal Aid Agency where it will be considered by a case worker who will decide whether to allow or refuse the application. If refused, there is no right of appeal. The applicant can request the Legal Aid Agency to reconsider its decision and can provide further information in an attempt to provide a more compelling case. However, ultimately the Legal Aid Agency's decision is final. Any challenge would have to be by way of an application for judicial review.
- Counsel for the guardian informed the court that currently the Legal Aid Agency states that its processing time for an application for prior authority is nine working days from the date of receipt. However, experience suggests that it can often take longer – sometimes very much longer. By way of example, the guardian's solicitor gave details concerning an application for prior authority in another case (co-incidentally a case that I am case managing) which had been submitted on 9th May 2017 and refused on 23rd May. A request was made for the application to be reconsidered. The outcome of the reconsideration is still awaited some twelve weeks after the application was originally submitted.
- Given that a solicitor acting for a parent under the terms of a legal aid certificate is not likely to agree to the letter of instructions being sent to the expert until prior authority has been granted, the need to apply for prior authority is routinely a cause of delay in children's cases. In light of the requirement set out in s.32(1) of the Children Act 1989 that applications for care orders should be dealt with 'without delay' and 'in any event within twenty-six weeks beginning on the day on which the application was issued', any delay in determining an application for prior authority adds to the challenge to complete that case within the statutory time limit.
- In this case the two medical experts who are to be instructed are Dr Neil Stoodley, a consultant neuroradiologist, and Dr Kate Ward, a consultant paediatrician. Both experts are well-known to the Family Court. Both are highly respected medico-legal experts. Dr Ward is content to limit her fees to the hourly rate allowable for a consultant paediatrician under Schedule 5 paragraph 1 of the Civil Legal Aid (Remuneration) Regulations 2013. Dr Stoodley is not prepared to accept the rate prescribed for a consultant neuroradiologist.
- The rate prescribed for a neuroradiologist is £136.80 per hour. The rate charged by Dr Stoodley is £180 per hour. His 'Terms of Engagement' reads:
'For reviewing all necessary material such as case notes and radiological investigations, research and for preparation of the report or preparation for Court appearance: £180 per hour (exc. VAT).
This is the rate the LAA would allow for a neuroradiologist instructed in a cerebral palsy clinical negligence case. I see no justification for considering my time to be worth less when instructed in cases in the Family Division.'
I respectfully agree. Neuroradiology is a highly specialised field. In a case such as this the complexity of the material to be considered is such that an expert with a high level of seniority is required. The pool of senior consultant neuroradiologists available to undertake medico-legal work in family cases is small. For both of those reasons, in my judgment, there are 'exceptional circumstances' which justify payment to Dr Stoodley of an hourly rate above that set out in the Table in paragraph 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013. An hourly rate of £180 is entirely reasonable.
- Having set out the background I now turn to the two issues before me.
The first issue: apportionment of expert's fees.
- The leading authority on this issue is the decision of the Court of Appeal in Re JG (A child)  EWCA Civ 656. Giving the leading judgment Black LJ said that:
'Is equal apportionment actually the normal order where there is no issue over resources?
86. First, I want to look at what the position is where there is no problem over resources. This is material because it is necessary to know, for the purposes of section 22(4) AJA 1999, which is the mainstay of the Lord Chancellor's argument, what are "the principles on which the discretion of [the] court… is normally exercised". It will be recalled that the thrust of the Lord Chancellor's case was that there is a normal rule that costs are to be apportioned equally between the parties and any departure from this which increases the burden on a publicly funded party must be confined to "very exceptional cases" where his two conditions were satisfied. For the reasons which I set out below, I do not accept that there is a normal rule of equal apportionment of the costs; in my view, like so many of the issues that arise in this appeal, it all depends on the particular circumstances of the case.
87. The approach to be taken when deciding how the cost of a jointly instructed expert should be shared amongst those instructing him was considered in Calderdale MBC v S and the LSC  1 FLR 751. The proceedings were care proceedings. All the parties were funded through the LSC except the local authority. The parties jointly instructed an expert. The LSC persuaded the family proceedings court that 50% of the costs should be paid by the local authority and 50% by the three publicly funded parties. On appeal, Bodey J substituted an order apportioning the costs equally between the four parties, so that each paid 25%. At §35 of his judgment, he set out considerations relevant to the exercise of the court's discretion with regard to the costs of such jointly commissioned reports. He made clear that all the circumstances of the case were relevant, including the adequacy of the work done by the local authority itself, whether the report is directed at the threshold or is designed to assist in welfare decisions, and the need for each party to have confidence in the integrity of the forensic process.
88. Bodey J's approach was endorsed by Sir Nicholas Wall P in A Local Authority v DS  EWHC 1442 (§7). Sir Nicholas' decision is interesting also for his underlining that "[o]ne of the golden rules….is that the instruction of an expert should not, unless it is unavoidable, hold up the progress of a case" (§46), and that "in cases involving children, speed is of the essence" (§53).
89. In London Borough of Lambeth v S  2 FLR 1171, Ryder J referred to what he described as the "non-exhaustive considerations" set out in the Calderdale case. The LSC were arguing that the local authority should pay the whole of the costs of a residential assessment directed under section 38(6) Children Act 1989. Ryder J did not accept that…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).
90. What I draw from the three authorities to which I have just made reference is that the court has a discretion as to what order is made as to the costs of instructing experts in family proceedings and that that discretion must be exercised bearing in mind all the circumstances of the particular case…
91. Since the Calderdale case, we have acquired Rule 25.12(6) FPR 2010 which, mirroring Rule 35.8(5) CPR 1998, provides:
"Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert's fees and expenses."
92. This provision received quite a lot of attention in argument in front of us. It is perhaps rather an odd provision to find in procedural rules, appearing to concern itself with the contractual relationship between the parties and the expert. It needs to be read with Rule 25.12(4)(a) which provides that the court may give directions about the expert's fees and expenses. It is quite clear from that, and from its own terms, that Rule 25.12(6) is not intended to be prescriptive and merely establishes a default position as to liability to the expert in the event that the court does not direct otherwise. I do not see it as setting up a "normal rule" that the cost is to be apportioned equally, any more than the Calderdale case did.
93. None of the authorities which I have just cited turned on the impecuniosity of the parties. Although they differ from the present case in that they were care cases, they are capable of providing assistance as to "the principles on which the discretion of [the] court is normally exercised" in relation to the cost of expert evidence. As I have explained, to my mind, they do not reveal the existence of a normal rule that costs be apportioned equally any more than Rule 25.12(6) does. Accordingly, in so far as the Lord Chancellor's submissions proceed upon the basis that equal apportionment is the norm, I would question the premise. In order to decide whether a court order has fallen foul of section 22(4), a more sophisticated exercise is required. It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the cost of the expert. In such circumstances, section 22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.'
- In the case with which I am concerned I have expressed myself to be satisfied that the instruction of Dr Stoodley and Dr Ward is 'necessary'. I am in no doubt that if the parents were legally aided I would have ordered that the experts' fees should be shared equally by all four parties. I am also satisfied that these parents are unable to afford to make any contribution (whether a proportionate share or any lesser sum) towards the experts' fees. I have noted that in her judgment in Re JG (A Child), Black LJ was very clear that equality is not the norm and that the impecuniosity of a party may justify the unequal apportionment of an expert's fees between the parties.
- In these circumstances what are the options open to the court? I could ignore the parents' financial circumstances and order them to pay their proportionate share. To do so would, in my judgment, be absurd given that it is clear that the parents simply cannot afford to pay. I could conclude that because the parents are unable to pay their proportionate share the court should not give permission for medical experts to be instructed. Given my finding that expert evidence in this case is 'necessary' then to do so would, in my judgment, be perverse and a breach of the Article 6 rights not only of the parents but also of the child. The third option is to accept that this is a case in which fairness and common sense dictate that an order requiring an equal sharing of the experts' fees is wholly inappropriate. The principled outcome in this case is to conclude that the fees of these two experts should be paid equally by the local authority and the guardian. That is what I shall order
- Unfortunately that does not necessarily dispose of the issue of apportionment of the experts' fees in this case. The Legal Aid Agency has published 'Guidance on authorities and legal aid for cases in courts outside England and Wales' (emphasis supplied). It is clear from all that follows that that title is misleading for the guidance clearly applies to solicitors in England and Wales who have a Standard Civil Contract with the Legal Aid Agency. The current version of the guidance states that it was updated in September 2014 'to reflect judgment of the Court of Appeal in Re: JG'.
- Section 1.6 of the guidance is headed 'Joint instructions and apportionment generally'. Paragraph 1.6(6) advises that:
'[In Re JG (A Child) in] judgments of both Mr Justice Ryder and the Court of Appeal there is reference to an application for prior authority as being the normal practice wherever a party's legal representatives or the expert are unwilling to take a risk as to the assessment of experts fees. As mentioned above, providers should consider making an application for prior authority if the cost is not equally apportioned, with full reasons for this being provided in the application.'
- The Legal Aid Agency has also published 'Guidance on the Remuneration of Expert Witnesses'. This was first published in 2013. It was most recently updated in April 2015. Section 4 of this guidance is headed 'Prior Authority in Family Cases. Paragraph 4.5 of that guidance appears to conflict with paragraph 1.6(6) of the 'Guidance on authorities and legal aid for cases in courts outside England and Wales'. So far as is relevant, section 4 of the remuneration guidance advises that:
'When should you apply for prior authority to incur costs of an expert service?
4.1. You must always apply for prior authority where you seek to incur costs of an expert service at higher rates than those set out in the Remuneration Regulations for that service.
4.2 In all other cases prior authority is not mandatory. Prior authority may be submitted whenever:
- The item of costs (which may consist of an expert fee or other disbursement) is either unusual in nature or is unusually large (paragraph 5.25 of the 2010 Standard Civil Contract specification; paragraph 5.11 of the 2013 Standard Civil Contract specification); or
- There are no codified rates set out in the Remuneration Regulations for a particular expert service.
When is an item of costs considered unusual or unusually large?
4.3. An item of costs is considered unusually large where it is greater than £5,000 per funded client or where the hours requested are in excess of those set out in Table 1 below.
4.4. In private law cases anything other than an equal apportionment of costs between the parties will be considered unusual and you can apply for prior authority.
4.5. In public law cases an unequal apportionment of costs will not always be unusual. For example a party may be an intervenor in a case and have limited involvement and it would not be appropriate for them to bear an equal share of an expert report. Another example is where there may be several children involved in proceedings with different fathers and there is an issue only in relation to one child. Again unequal apportionment will be appropriate.'
In this case the court has determined that expert evidence is 'necessary', it has approved the instruction of Dr Stoodley and Dr Ward and it has now determined that the experts' fees should be apportioned equally between the guardian and the local authority. In those circumstances why is prior authority needed before the letter of instructions can be sent? And if an application is made for prior authority for an unequal apportionment of an expert's fees ordered by the court, is it open to the Legal Aid Agency to refuse that application?
A similar question was considered by Sir Nicholas Wall P in A Local Authority v S and others  EWHC 1442 (Fam). The issue facing the President did not relate to the apportionment of an expert's fees but to the expert's hourly rate which exceeded the rate then allowable by the Community Legal Service (Funding)(Amendment) Order 2011. The President said,
'38 For present purposes, the law can be taken quite shortly. To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubtedly the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223 ) or can be struck down for any other public law reason, is to apply for judicial review.'
In my judgment there is an important difference between a judicial decision concerning an hourly rate and a decision concerning the apportionment of responsibility for payment of an expert's fees. Whereas the quantification of an expert's fees is clearly governed by the Civil Legal Aid (Remuneration) Regulations 2013 the issue of apportionment is not dealt with by those or any other regulations. The issue of apportionment is at large. It is a decision for the court to make. It is a decision that can be appealed. Is it, though, a decision that can effectively be rendered nugatory by a decision of an administrative body? Does the Legal Aid Agency have the power to refuse to comply with a court's decision concerning apportionment? For my part, I have some doubts. However, that is a question for another court on another day. So far as concerns this present case I understand why the guardian's solicitor considers it prudent to seek prior authority. That application should be made and determined without delay.
The second issue: the expert's hourly rate
Let me then turn to the second difficulty I have identified. Dr Stoodley proposes to charge £1,800 to consider the papers and prepare a report – that is 10 hours (the maximum allowable by the Legal Aid Agency) at £180 per hour. That is an excess of £432 over the sum that would normally be allowable. Applying the same sharing principle – i.e. that Dr Stoodley's fees are to be divided equally between the local authority and the guardian – would mean that the solicitor for the guardian would have to pay £216 more than she will be entitled to claim back from the Legal Aid Agency. Even if only 25% of the experts' fees were borne by the guardian's legal aid certificate that would still mean that the solicitor for the guardian would have to pay £108 more than she will be entitled to claim back from the Legal Aid Agency.
So far as that excess is concerned, for the reasons set out by Sir Nicholas Wall P in A Local Authority v S and others  EWHC 1442 (Fam) I accept that it is necessary for the guardian's solicitor to seek prior authority to instruct Dr Stoodly at an hourly rate of £180.
The guardian's solicitor must now make an application for prior authority. That should be done without delay. The Legal Aid Agency should be provided with a copy of this judgment. It should respond without delay. The guidance given by Sir Nicholas Wall P in A Local Authority v S & others continues to be pertinent. He said (at §45) that,
'(7) Speed is of the essence in proceedings relating to children. An application for prior authority must be made at the earliest opportunity and, once again, must be carefully drafted and supported by reasons.
(8) By like token, it behoves the LSC to deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision. Once again, the reasons can be concise. Of course the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rates the expert demands, but such a suggestion, in reality, is unreal. The expert's contract is with the solicitor, and if he or she does not recover the expert's costs from the LSC, it is the solicitor who is liable. Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take, particularly where the client is impecunious.
(9) Similar considerations to those set out above apply to any challenge to the LSC's ruling.
(10) If a case is urgent, it should be so marked and the reasons for its urgency explained.'
There is one final point that should be made and it is this. In determining the guardian's application for prior authority in this case the Legal Aid Agency must engage with the case advanced by the guardian's solicitor. In the event that the application is refused then, as was made clear both by Sir Nicholas Wall P in A Local Authority v S & others  1 WLR 3098 and by Collins J in T v The Legal Aid Agency  EWHC 960 (Admin), the Legal Aid Agency must give reasons for its decision. Sir Nicholas Wall P said that the reasons given for refusal 'can be concise'. Collins J said (§14):
'I echo and endorse what the President there says. While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.'
The reasons given for refusal of a request for prior authority should be 'concise' but must also but be sufficient to enable the parties to understand why the application has been refused. In paragraph 11 above I referred to another recent case in this court in which there has as yet been no final determination by the Legal Aid Agency of an application for prior authority submitted twelve weeks ago. The initial refusal of the application was communicated to the solicitor by means of what is clearly a standard form letter almost akin to a tick-box form. The letter makes no attempt to engage with the particular circumstances of the case. The letter begins:
'Thank you for your amendment request dated 09/05/2017. Unfortunately on this occasion the request has been refused for the following reason(s): Your prior authority to instruct an expert exceeds the codified hourly rate for this type of expert. Your request is not considered exceptional on the information provided with your application, on this basis there is no justification in granting authority above the codified set rates…'
For my part, I am doubtful whether that standard form letter meets the requirements identified by Sir Nicholas Wall P and Collins J in the two cases referred to above.
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