The Court of Appeal (almost a year after the High Court ruled otherwise) have decided in JG v the Lord Chancellor and Others 2014, that a Court can lawfully decide that the costs of an expert report be bourne by one party (the one who is receiving public funding) rather than split between everyone.
I wrote about the original decision here https://suesspiciousminds.com/2013/04/11/not-with-a-bang-but-a-whimper/ with quite a bit of disappointment in my heart, so I am pleased that the Court of Appeal have taken a different view.
Quick bit of context first – up until LASPO (Legal Aid, Sentencing and Prosecution of Offenders Act) came into force, most private law proceedings (i.e mum and dad arguing about where a child should live, or how much time the child should spend with each parent) had at least one of the parents, sometimes both, receiving legal aid (free legal advice). That legal aid could be used to pay for expert reports – for example, if there was a dispute over paternity, a DNA test, if one person alleged the other had an alcohol or drug problem, testing, if the child was displaying unusual behaviour an expert to help understand that.
After LASPO, people now only get legal aid in exceptional circumstances – it doesn’t matter if they are on benefits, or have learning difficulties, they won’t get legal aid unless they fit some very narrow prescribed criteria.
Next bit of context – in particularly tricky cases, the Court appoint a Guardian (which we call a Rule 16.4 Guardian, after the bit in the Family Procedure Rules that governs it) to assist the Court in reaching decisions. The Rule 16.4 Guardian GETS legal aid.
That led to a situation in which if an expert report was needed and the parents could not afford it, the Court would order that the costs be met entirely by the Rule 16.4 Guardian (and hence legal aid). The Legal Aid Agency cottoned on to that, and started refusing to pay (even after the expert had done the report and the Guardian’s lawyers had written the expert the cheque, leaving the lawyers out of pocket and thus reluctant to take on such cases in the future). One such refusal was judicially reviewed, and Ryder J (as he then was, he is now Ryder LJ) refused the judicial review and said that the Legal Aid Agency was entitled to take a position that any expert costs should be divided equally between all of the parties and that the costs should not all be loaded on to the Guardian’s public funding. [It is a little like three people going out to dinner, and putting the bill on the person who has an Expense Account, if that makes sense, and then the firm paying the Expense Account saying “Hey, we don’t mind paying for YOUR dinner, but not for the other two”]
Ryder J did say that in an exceptional case where the parent could not possibly pay anything towards the cost of the report, and the Court considered it was vital, things might have to be looked at differently.
So, the Court of Appeal disagreed with Ryder J’s decision – but not in a way that gives carte blanche for all reports to be loaded on to the Guardian’s public funding certificate (actually the Child’s) and the parents to pay nothing. It is a bit more nuanced than that.
There were basically two sides to this (because it had now become an issue about principle, rather than the parents own case) – the Law Society, arguing that the Court should have the power to decide how costs should be apportioned and particularly where failure to have the report would breach article 6 (right to fair trial) or article 8 (right to family life), and the Lord Chancellor – arguing that this should only be in a situation where the Legal Aid Agency deemed itself that it was appropriate. It’s a fundamental question of who is in charge, the Court or the Legal Aid Agency.
Law Society to throw first
a) The appellant’s and the Law Society’s case on the general question
67. The appellant adopted the Law Society’s submissions on the general question. The Law Society submitted that where expert evidence was necessary in the circumstances set out in the question, the court should direct the child, through her guardian, to obtain the evidence and give the child permission to adduce it, although in instructing the expert, the guardian should normally seek to agree with the other parties, if possible, which expert is to be instructed and the instructions to be given to him. The court’s direction should be subject to any prior authorisation or increase in costs limitation that may be required for the purpose. The Law Society submitted that those responsible for administering legal aid could not refuse to give such approval as refusal would be incompatible with articles 6 and 8 of the ECHR and would deprive the court of the assistance it needs to enable it to determine what the welfare of the child requires, thus being “incompatible with the object and purpose of the legislation for the protection of children involved in private law family proceedings”. There is no point, submitted the Law Society, in funding the representation necessary to protect a child’s interests in the private law proceedings yet denying the funding required to enable the evidence to be provided that is necessary to establish what the child’s welfare requires.
68. It was submitted that a requirement, such as that favoured by Ryder J (see §§75 et seq of the judgment), for a “robust scrutiny of … means” with reference to a party’s financial eligibility for legal aid prior to the instruction of the expert would present the courts with a task for which, unlike the Legal Aid Agency, they are not equipped and which would import harmful delay whilst investigations were carried out. The Law Society’s proposal was therefore said to be a better alternative because the expert could be instructed without delay on the basis that the cost of the report could be met as a disbursement on the child’s certificate, leaving the parties’ respective liability for the fees to be dealt with by means of a costs order, if appropriate.
Lord Chancellor, you require forty (sorry, to go next)
b) The Lord Chancellor’s case
69. The Lord Chancellor accepted that “if there were a case in which a report was genuinely sought by the publicly funded party alone, for reasons affecting that party, and the other parties did not agree with or seek to make use of the report, then the court might direct that the cost[s] were borne by that party alone and it would be legitimate for the legally aided party to bear the full costs of that report” (§61 of the Lord Chancellor’s skeleton argument). In those circumstances, he said, the legally aided party would have to formulate the instructions without the involvement of the other parties. That set of circumstances was not what he was addressing in his main submissions.
70. In cases where expert evidence was necessary but the report was not genuinely sought by the publicly funded party alone, the Lord Chancellor submitted that the judge’s solution, which had of course largely been put forward by him, was correct. Only in “very exceptional cases” could the court depart from the norm of a single joint expert whose fees would be apportioned equally between the parties, it was submitted. Two conditions had to be satisfied:
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”
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.
The Court of Appeal then distil the arguments down to common ground and areas of difference
c) Points in common and points of difference
71. It can be seen that all parties agreed that there may be situations in which an order can be made which does not apportion the cost of an expert equally between the parties in a case. It was common ground that where this was a departure from the apportionment that would normally have been ordered, the justification for this would be that otherwise there would be a breach of a party’s Convention rights. It was also common ground that in these circumstances, section 22(4) would not present an obstacle to the order being made. The absolutist position which I think was adopted by the LSC in front of Ryder J, namely that there were no circumstances in which the LSC could be ordered to pay experts’ fees “beyond a proportion that represents the proportion of legally aided parties” (see §79 of Ryder J’s judgment), was not advanced before us.
72. Underlying matters of detail were not agreed. There was debate as to whether it was necessary to impose a requirement of exceptionality, as to when and how a party’s inability to pay should be established and, an allied question, as to whether the proper way in which to regulate the parties’ share of the fees was by regulating their contractual liability to the expert or by means of conventional costs orders. Another major difference between the parties was that the Lord Chancellor was wedded to the idea of a single joint expert (and utilised that as a significant part of the foundation for his arguments) whereas the other parties contemplated that the expert could be instructed by the child/guardian alone, albeit with input from the other parties to the instructions.
A major part of the argument was whether the report being commissioned was really one being commissioned solely on behalf of the Child, or whether it was really one for the benefit of all parties and just pretending to be a sole instruction to get the free funding (To go back to the dinner analogy – was this really a business meeting that the Expense account could pay for legitimately, or were two people getting a free lunch?)
The Court of Appeal consider some hypothetical situations but eventually come down to this
84. Doing the best I can to forecast the sort of situations that may arise, it seems to me that it may not be all that infrequent that an application by a child/guardian for permission to instruct an expert will genuinely be for an expert on behalf of the child, as opposed to a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court and into the format of the expert’s instruction. Section 22(4) will then present no obstacle to the cost of the expert being met by the child’s public funding.
But going on to say that even if it is really a joint report, and the parents can’t pay, the Court still have to consider what is right and fair
When the expert is not solely the child’s expert
85. If the expert is not in fact the child’s expert but is a single joint expert, and the other parties are unable to contribute to the cost of the expert, it is necessary to consider in what circumstances public funds can be required to meet the whole cost. Once again, I will confine myself in this discussion to the current provisions of the 2010 Rules.
The Court then looked, in a lot of detail, about whether there was a presumption in law that any report would have the costs split equally – there is a provision in the Family Procedure Rules that says that this is what will happen in the absence of the Court saying otherwise. Does that mean that the Court have to have reasons for deviating from an equal split, or does it just mean that if the Court is silent, that’s what happens?
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.
That’s quite dense, but basically, what the Court of Appeal say there is that there may be circumstances (even if there is no issue over the parties ABILITY to pay) where the costs of the report might be met by one party exclusively or where one party may make a larger share, and the Court has the legitimate power to do that.
[That, to make it explicit, is the Lord Chancellor losing an argument]
Next – what about a situation where the Court thinks that it is FAIR to split the costs equally, but one or more parties has resource issues (impecuniosity – or in layman’s terms, they are skint)
95. In the light of what I have said in the preceding section, I would reformulate the Lord Chancellor’s submission so that, rather than focussing upon whether the court can depart from equal apportionment of the expert’s fees, it focusses upon whether the court can depart from the order that it would have made but for the resources problem (to which I will refer in shorthand as “the normal order”). The Lord Chancellor sought to impose what, for the purposes of the discussion that follows, I will treat as three conditions for such a departure from the normal order although I accept that he may well not have intended the third one to be a condition as such. The three “conditions” are that it must be established that the other party could not pay his share of the cost; the normal order would involve a breach of a party’s Convention rights; and the case must be a “very exceptional” one.
Condition 1 (remember these are the conditions proposed by the Lord Chancellor) – an equal split would involve a breach of the party’s convention rights – there’s a lot of this, so I have skipped to the conclusion
108. The Lord Chancellor’s argument seems to me to risk prejudicing the child in order to prevent a parent who is not otherwise entitled to legal aid deriving a benefit from a report which has been paid for by public funding. I have already emphasised that FPR 2010 acknowledge that a party may benefit from a report produced by another party’s expert without that expert becoming a joint expert. Anyone who has ever conducted or watched a successful cross-examination of an expert knows this perfectly well. The fact that a party who is not publicly funded will or may benefit from the expert’s input is likely to be a material factor in the court’s discretion as to the cost of the expert but it is not a reason to conclude, as I think is the conclusion to which the Lord Chancellor’s submissions would logically lead, that even though the child’s Convention rights would be violated by the inability to obtain the expert advice that the court had concluded was necessary to assist it, the expert could not be paid for on the child’s public funding certificate because that would benefit one or both of the parents as well.
109. It is as well to remember that cases in which the child is joined as a party are far from commonplace, as can be seen from the various provisions which I outlined earlier in this judgment starting at §39. They will be cases in which there are particular challenges in determining what is in the best interests of the child or in actually achieving the right solution in practice. The role of the child’s guardian is directed very firmly at achieving a resolution that is in the best interests of the child. His or her duties are defined and circumscribed as I have described earlier. His or her decisions must be made for the benefit of the child and he or she must make such investigations as are necessary to carry out his or her duties including obtaining such professional assistance as he or she thinks appropriate. By the time the guardian has endorsed the instruction of an expert as appropriate and the court itself has approved it as necessary, there will be the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights will be violated if the court cannot be provided with that expert assistance. Whether the argument will ultimately succeed will depend, of course, upon the precise nature of the decision to be taken in relation to the child.
It will be necessary for the parties to persuade the Court that an equal split (if that means the report can’t be obtained) would result in an article 6 or article 8 breach, but that’s not as much of an uphill struggle as the Lord Chancellor would have hoped – the parties start partway up that hill.
I reckon the Lord Chancellor (apologies for not continually putting that title in quotation marks, since he isn’t a Lord Chancellor in the way that any lawyer or historian would recognise the role) lost that one as well
b) A very exceptional case
110. It is understandable that the Lord Chancellor should seek to confine the cases in which the cost of the expert would be apportioned unequally to avoid a breach of Convention rights by stressing that this could apply only in “very exceptional cases”. This approach ties in with the language of section 10 of LASPO 2012. However, whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights. I see no more justification for introducing a specific exceptionality requirement in the context we are considering here than the draftsman appears to have seen in relation to section 10 and it seems to me that it would distract attention from the central question. Granted, we are concerned with a departure from the way in which the court would otherwise have catered for the costs of the expert, so to that extent the order would be exceptional. That is a description, however, not a test or an additional hurdle.
That’s an indisputable loss for the Lord Chancellor.
111. It was common ground that the court would not be considering departing from the normal order unless the parties who would normally have to share the cost of the expert were unable to do so. There was debate, however, as to when and how impecuniosity would be determined.
There’s a risk of course, that the Court spends so long gathering information about whether or not someone is genuinely impecunious (as opposed to not keen on paying £2000 for a share of a report, which would apply to pretty much everyone) that the child’s welfare is prejudiced by delay. There’s a difficult balance to be struck here.
112. Ryder J held, accepting the Lord Chancellor’s submissions, that “a robust scrutiny” was required of the party’s means, and said that what was a robust scrutiny would depend on the circumstances of the case but “an important consideration …. should be the party’s eligibility for legal aid where that still exists” (§76). He considered that if the party would not qualify for legal aid on the basis of their means, that was a factor that should point very strongly in favour of that party having to pay their full share of the cost of an expert’s report whereas, in contrast, if the party would qualify for legal aid, it may suggest that they should pay less than a full share, although paying nothing at all should be exceptional, bearing in mind that legally aided parties often have to pay a contribution (§77).
113. A particular concern of the Law Society was that the assessment of impecuniosity should not delay the proceedings. They were right to be concerned about that. Section 1(2) CA 1989 (see above) requires the court to have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the child’s welfare. Furthermore, delay in resolving matters is capable, itself, of giving rise to breaches of Convention rights. What has happened in this case amply demonstrates that wrangles over the extent to which an expert’s costs should be met from public funds can introduce huge delay. The proceedings relating to this child were commenced in 2006, the guardian first sought a report in 2008 and the question of the payment of the expert remained unresolved in 2012 when we can see that the debate was impeding a final hearing of the case. It is quite possible that there were other problems as well as the expert’s fees but this is quite an indictment of the system. It leads me to the view that whatever system is operated must be one which is practical and not over technical and which avoids delay wherever possible.
114. The Law Society’s proposal that the child should be directed to obtain the expert evidence in the first instance with the ultimate liability for the expert’s fees being distributed between the parties by means of a costs order later in the proceedings therefore has considerable appeal.
115. The Lord Chancellor challenged it on a number of bases. Some of the arguments raised against the proposal amalgamated the issues of a breach of Convention rights and impecuniosity whereas I have dealt with these separately. Some covered the ground which I have examined when considering whether or not an expert is properly the child’s sole expert. I only reach the question of impecuniosity on the basis that the Lord Chancellor’s condition that the normal order would involve a breach of a party’s Convention rights is satisfied and, as I have explained, in my view there is no third condition of “exceptionality”
116. I sensed that an understandable concern of the Lord Chancellor was that joining the child as a party and using the child’s public funding to pay for an expert would become a widely used device – a back door to public funding for parents who would not otherwise have it – and I think he saw the Law Society’s proposed scheme as a way in which to have all the benefits of a single joint expert without the non-legally aided parties having to bear the cost. He did not, however, go so far as to suggest that only those who would in fact satisfy the financial criteria for legal aid should be treated as impecunious for the present purposes but submitted that eligibility might be a useful starting point and yardstick.
117. Ryder J also saw financial eligibility for legal aid as a relevant factor and I do not disagree. In my view, the Lord Chancellor was right not to argue that satisfying the financial eligibility criteria is a necessary qualification, not least because it may well place the family courts in considerable difficulty if they had to carry out the sort of detailed and technical assessment that the LSC would use to determine financial eligibility. The challenges facing the courts in private law cases in the new post-legal aid regime are evident and they are also working hard to process care cases with expedition. It is difficult to envisage them having the resources to assess a party’s eligibility for legal aid as the LSC would do, without seriously holding up the individual case or prejudicing the rest of their work or both. But in so far as financial eligibility can be ascertained, it must be relevant. If the party in question would not qualify for legal aid, that may count heavily against an argument that they could not pay their full share of the cost of the report whereas, conversely, if they would qualify, then that may suggest that they cannot pay a full share. As Ryder J rightly pointed out, it is not all or nothing. It may be that a party could not pay a full share but could pay something towards the expert’s costs, just as they could be required to pay a contribution towards their legal aid.
118. It is difficult to forecast what financial information will be available to the court and at what stage in the proceedings. There may be cases in which a party has already been assessed for financial eligibility for legal aid and no doubt it would be appropriate to have regard to the outcome of such an assessment in those cases. In some cases, as in the present case, financial information is available because there are or have been ancillary relief proceedings. In other cases, directions will have to be given to secure the necessary information from the parties.
119. The stage at which the court can reach a final determination as to whether a departure from the normal order is required for Convention reasons is likely therefore to vary, depending on the facts. There may be cases in which the decision can be taken before the expert is even instructed, with the parties’ shares of the cost being settled from the outset. There may be others in which that would or may import harmful delay into the proceedings and in which there is no option but to adopt the Law Society’s solution of requiring the guardian to instruct the expert in the first instance, but with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order. The court would, not, of course, embark on that route without some cogent evidence that the other parties would not be able to pay their way in the instruction.
I wouldn’t call that an outright victory for either side – it seems that before a Court decides that a party is impecunious (and thus couldn’t pay an equal share, and thus the report wouldn’t be obtained) it has to decide what information about finances is reasonable to inspect – if they can be obtained swiftly then it would be considered before the expert report is comissioned, if not, then the Court may make an order that the report be paid out of the Child’s public funding, and then remedy that with a later order once the financial information is available.
In the individual case, the Court of Appeal decided that it was right that the costs should have been met through the Child’s public funding /legal aid, and that they differed from Ryder J’s decision.
For broader cases, the Court of Appeal say this
132. I would simply add that when judges are called upon to deal with the sort of difficult issues that have arisen here, it would be prudent for them to explain their reasons for each decision that they take in a short judgment and for their orders to be precisely spelled out.
[All of this boils down to a Britney Spears type exhortation – You want an expert? You want a 16.4 guardian? You want the costs of the expert to be paid by the child’s legal aid? You want the court to say you’re impecunious? You better work bitch]