I’ve talked before about the new decision of the LSC to not grant prior authority for cases any more, and why that is actually worse that the already awful situation we had pre October (as they won’t now tell anyone what they consider to be a reasonable amount of hours for the assessment, and there’s no mechanism for finding that out before the costs are refused, we are all in the dark)
I’ve been sent this proposal via ALC – Association of Lawyers for Children (and will print it in full – I commend them for trying to tackle the problem, but there’s no way in hell anyone representing my Local Authority will be instructed to agree to an order in those terms. I don’t blame the ALC for advising their members that they can’t put themselves on the financial hook for the shortfall in fees, and I understand that they don’t want the proceedings delayed whilst we work out what the hell to do with the expert, but there’s no way that I am agreeing for my authority to be on that financial hook because the LSC have difficulties in arranging a beverage-consuming party in a beverage-manufacturing facility)
Anyway, without further ado – here’s the ALC’s letter and proposal. Perhaps the LA in your area are more flush, or kinder than I am. (The former certainly not, the latter, possibly)
As members will be aware from the LSC’s announcement on its website headed “Prior authorities for civil experts – revision to processing”, posted 30th August 2012, the LSC are no longer willing to concern themselves, in considering the grant of prior authority, with the number of hours work to be carried out by an expert, unless the number of hours requested is “unusually large”. Since the MoJ/LSC decline, pending completion of research they are presently engaged upon, to formulate what constitutes a usual number of hours, it is probable that, in practice, they will decline to deal with most, if not all requests regarding approval for number of hours. These will be at risk, in effect, and the standard letter clause approved by the ALC and other representative bodies indeed covers that.
Almost all prior authority requests are accordingly only to be made now in respect of hourly rates (where necessary, having regard to relevant SI schedule and criteria).
Further discussions are being held between representative bodies and the LSC on 8th October 2012, in an attempt to speed up the process of obtaining clarity as to what are considered to be appropriate numbers of hours, and filling in the blanks as to hourly rates for various expertises. However, the MoJ has already indicated that it prefers to deal with amendments by way of statutory instrument, rather than guidance, and it may well be the spring of 2013 before we have any clearer picture.
We continue to hear of cases in which the LSC take an inordinate amount of time to process applications for prior authority for experts to be instructed at a rate higher than the standard rate, so that the prior authority is not available for a hearing at which it is intended to obtain authority to instruct, or decline altogether to grant such authority, despite solicitors having used the guidance and recited the terms set out by the President at paragraph 54 of his judgment in A Local Authority v DS,DI,DS, 31st May 2012, EWHC 1442 (Fam).
In such circumstances it is important for practitioners to bear in mind that their firms are at risk in respect of any excess fees.
It is clearly unsafe to agree to instruct, or be a party to instruction of an expert at an hourly rate which exceeds the standard rate for the expert, unless and until prior authority is in place for that hourly rate, and you have seen a copy. If you proceed nevertheless, you risk making your firm liable for the relevant proportion of the shortfall between the hourly rate you are agreeing to, and the standard rate, multiplied by the relevant proportion of the hours worked by the expert. This could be quite a lot of money – e.g. agreeing in advance to a half share of a psychological report involving 25 hours work and an excess fee of £33 per hour [150 instead of 117 e.g.] could cost your firm over £400.
It seems that at present we can expect little assistance from the judiciary in rectifying matters after the event. The standard position of any hard pressed local authority will be that they are unwilling to pick up the difference and will resist an order being made on the basis that “all this ought to have been sorted out before by the respondent’s solicitors”.
The only safe way, we think, for members to protect their firms is to decline to proceed with the instruction of an expert until prior authority has either been granted, or refused by the LSC.
Of course this means delay. It is almost certainly going to be inimical to the interests of the child and also of any parent/relative for whom we act.
However, we cannot help it if the government on the one hand wants everyone to cooperate in speeding up proceedings, but on the other will not permit the LSC to operate a system which assists in that process. Judges need to understand the problem, and to realise that, until the issue is sorted out by the MoJ/LSC, they really have no choice but to adjourn the issue of instruction of that expert until the prior authority is through. The case of A Local Authority v DS,DI,DS cannot be relied upon to protect the solicitors for publicly funded parties. Further, if prior authority is refused, courts will then have to deal with how the shortfall is to be met, provisionally at least. It will help if you draw to the court’s attention that the court’s own case management information system, in place now for some 6 months or so, known as CMS, specifically includes, as a reason which can be entered on the system to explain the need for an adjournment, “Prior authority from LSC not available” – this is in the section of the CMS record headed “Case Management”.
You may want to use/adapt the following template (drafted earlier this week) for cases where prior authority has been refused, but the instruction of the expert must, in the parties’ interest nevertheless go ahead if at all possible, and so must be underwritten by the local authority – it includes the possibility that, at the conclusion of the case, the LSC will in fact pay the fee either at the requested hourly rate or at an intermediate rate:
[by way of recital] “The court being advised that the Legal Services Commission has declined to give prior authority for the instruction of  at the hourly rate referred to, and approved by the court in the order of  dated  at paragraph 
[by way of order] “In respect of the fees of  for preparation of reports in these proceedings, attendance at any experts’ meeting and attendance at court to give oral evidence the local authority shall, in respect of the shares directed to be paid by the Respondents under their public funding certificates, pay to each of the Respondent’s solicitors a sum equivalent to the number of hours work attributable to their share multiplied by £, [“the local authority’s excess contribution”]. These payments shall fall due upon delivery of the relevant fee notes, so as to enable the Respondents’ solicitors to make payments on account to the expert. In the event that the Legal Services Commission assesses the experts fees, following conclusion of the case, at the hourly rates approved by the court in its order of , or at a rate higher than the hourly rates set out in the Community Legal Service (Funding)(Amendment No 2) Order 2011, then the Respondents’ solicitors shall forthwith repay to the local authority’s solicitors the local authority’s excess contribution or the appropriate rateable proportion.”
We consider the present position to be deeply unsatisfactory, but pending clarification through judicial review or otherwise, we need to draw members’ attention to the need to stand firm on this issue – most practitioners’ margins have been squeezed quite enough this year without the need to expose themselves to these risks.
Alan Bean and Martha Cover