DS and Others (Children): FD 31 May 2012

The court gave guidance on legal aid arrangement for the funding of supporting expert evidence in care applications.
Held: The court gave the following guidance: ‘i) The words ‘the cost thereof is deemed to be a necessary and proper disbursement on [a named individual’s] public funding certificate’ (or words to equivalent effect) should no longer be used when the court orders a report from an expert. The words do not bind the LSC or, for that matter anybody else. In addition, there must be doubt about the court’s power to make such an order. It is, in my judgment, far better to follow the words of the Regulations, particularly if the court is being asked to approve rates in excess of those allowed by the Funding Order. A copy of such an order is attached at the end of this judgment.
ii) The test for expert evidence will shortly import the word ‘necessary’. The question which the court will have to ask itself is whether or not the report of the expert is necessary for the resolution of the case. FPR rule 25.1 will shortly be amended to insert the word ‘necessary’ for ‘reasonably required’ and there will be a new Practice Direction.
iii) It is the court which makes the order for the instruction of an expert, and this responsibility neither can nor should be delegated to the parties. It is of the essence of good case management that the court should identify the issues on which it wants the expert to report. It would thus be helpful and important for the tribunal to be able to say – if it is the case and the hard pressed Tribunal with a long list has had the time – that it has read all the (relevant) papers.
iv) If the court takes the view that an expert’s report is necessary for the resolution of the case, it should say so, and give its reasons. This can be done by a preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge’s approval. I have considered this point carefully, and have come to the conclusion that this does not impose an undue burden either on the court or the profession.
v) There is no substitute for reasons. A consent order is still an order of the court: it is a judicial decision and must be supported by reasons. Equally, a decision by the LSC is a decision. It too should be supported by reasons.
vi) ‘Reasons’ in circumstances such as these need not be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates which are higher than those set out in the table in Schedule 6 of the Funding Order
vii) 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.
viii) 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.
ix) Similar considerations to those set out above apply to any challenge to the LSC’s ruling.
x) If a case is urgent, it should be so marked and the reasons for its urgency explained.
xi) Courts should familiarise themselves with Part 25 of the FPR and with Practice Direction 25A which supplements it. Specifically, they should be aware of paragraph 4.3(h) or its equivalent when amended which provides that the person wishing to instruct an expert must explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children’s Guardian in accordance with their respective statutory duties. The Rule and the Practice Direction are being revised to make them (it is to be hoped) more practical and ‘user friendly’. Practitioners should look out, in due course, for the amendments. ‘
Sir Nicholas Wall P
[2012] EWHC 1442 (Fam), [2012] 1 WLR 3098, [2012] Fam Law 1078
EndorsedCalderdale Metropolitan Borough Council v S and Another FD 18-Oct-2004
An expert’s report was required for the purposes of care proceedings. The court ordered that the cost be paid as to half by the local authority, where there were three other parties. The authority appealed.
Held: The authority’s appeal was . .

Cited by:
CitedT, Regina (on The Application of) v Legal Aid Agency and Others Admn 26-Apr-2013
In care proceedings, an order had been made for the preparation of an expert report. The legally aided children applied to the defendant for assistance. It allowed a sum less than the minimum figure set by the expert company as a fee for doing the . .

These lists may be incomplete.
Updated: 12 April 2021; Ref: scu.460530