It is vital that all experts are fully aware of the rules that govern their payments and that you are covered when instructing them. There are recommended terms and conditions of business prepared by the Law Society which are very good and, if used should cover your back in most situations.
3 Apportionment between parties
3.1 S30 LASPO sets out that the court should not apportion liabilities of the parties for experts or disbursements based on the fact that one of the parties is on legal aid.
3.2 The recent case of JG v LSC decided that it would only be in exceptional circumstances that all parties would not be directed to share or at least contribute to the cost of a report. This seems to imply that all expert assessments should be shared but we still take the view that they should only be shared between those parties that have a direct interest in the outcome of the assessment. However in the light of this case you may well find that most assessments are now jointly funded.
3.3 If any party is unable to pay for whatever reason, it seems that it will be difficult for any expert to be instructed.
3.4 There has been no guidance as yet as to what would be exceptional circumstances. In particular, it is unclear whether the complete inability of a party to pay (as determined by the court in a hearing) would be sufficient if the court decided that the expert assessment was “necessary”. This will have increasing relevance to private law proceedings with virtually no legal aid now available and also to care proceedings if there is a party who is not legally aided.
3.5 We would suggest a careful reading of the judgment of Ryder J. We might suggest that there may be circumstances when there is an assessment of the child’s needs (without reference to the parents) or where the Guardian sets out that the assessment is crucial to his/her assessment. It might be possible to persuade the LAA that the child’s legal aid should cover this, but you should always apply for prior authority and you will have to draft a very detailed statement of case in support.
4. Risk assessments
4.1 There is guidance on approving higher rates for ISW when they are carrying out a risk assessment (the rate for risk assessment is £63 per hour)(see reference above). The guidance refers to the need for:-
• The court determining that a risk assessment is needed and
• The work needed is over and above that requiring independent social work expertise
The LAA set out an example of when the expertise may require the expert service to be treated as a risk assessment - there is a substantiated criminal allegation relevant to the proceedings in the immediate background of the case and a finding has been made by a court
4.2 It is not intended that this guidance relates only to sexual abuse cases as far as we know although that is the example given. It seems that it could equally apply to domestic abuse cases and NAI cases
4.3 It should follow that civil findings are sufficient to trigger this higher rate provided that the Court has determined that a risk assessment is needed and the work is over and above that requiring an ISW expertise. However you will need to approach these very carefully with detailed orders setting out the nature of the assessment and why specialist services are required.
5. Advocacy Support Services
This is where the client is supported during the proceedings or in court and to aid their understanding of the proceedings. LAA do not consider that these form part of legal representation and so are not recoverable from the fund.
6. Procedure to instruct
6.1 Family Procedure Rules now make clear that an expert has to be “necessary” rather than reasonably required
6.2 LA should identify any necessary assessment with its initial application
6.3 Advocates meeting before CMH should cover:
• Identifying all experts and establish availability and likely cost.
• Agree proposed questions and who is to instruct
• Who is to make application to court if not already made?
• Agree proposed apportionment and whether prior authority needed
• Why the evidence cannot be given by existing witnesses
• Who is to obtain any medical records?
6.4 Need to attend court with draft order setting all matters agreed above (ideally with letter of instruction) or, if no chance to have advocates meeting what is being proposed by the party wishing to instruct expert.
6.5 Judge still has to approve whether instruction necessary
6.6 All parties will be expected to have a view on the need for the expert
6.7 Expect a tough line to be taken on failure to comply with costs orders possibly following. It will be interesting (albeit worrying) whether a failure by solicitor which adversely affects client’s case could lead to negligence actions
6.8 The court will record reasons for failure in Case Monitoring system.
6.9 Keep LOI brief. Unless absolutely necessary we suggest you do not set out the background in detail. However, you will need to point any particular issues which may not be apparent from the papers. Ensure relevant deadlines are clearly set out for when report is to be filed and when the expert has to give evidence
6.10 Consider whether you need an experts’ meeting..
• Court is likely to want you to deal by simply asking further questions in writing. The problem for your client is that it is simply not the good as cross examination to challenge an expert.
• Consider whether the same thing can be achieved by “hot tubbing” at court
• If meeting needed then ensure there is a direction with clarity as to who is to chair, when questions are to be sent and whether you need a transcript.
• Assuming any experts’ meeting is by telephone ensure that you get a direction for costs of such meeting to be shared in the same way.
• Consider whether you want a transcript of meeting. It can help in that there is then an accurate record of what was said but some believe it inhibits experts and may prevent them from speculating over wider issues.
7. What to do if expert is late
7.1 Check that expert is on track well before deadline.
7.2 If anyone misses an appointment check if it will affect timetable
7.3 Notify court as soon as it is known that an expert report cannot be filed on time for whatever reason.
7.4 Court can consider whether to stop assessment entirely or require expert to give live evidence early.
7.5 If delay caused by instructing solicitor it will be recorded in case monitoring system and costs orders may start to flow if firm is a regular offender.
7.6 Obligation on all parties to notify court of any delay but particularly on solicitor for child.
8. Expert attending court
8.1 If expert to give live evidence get a separate direction with further provision for payment
8.2 If evidence being given by video link etc ensure a separate provision for payment of those extra costs
8.3 If court seeks to avoid attendance by further questions being put ensure costs of this are covered by a further direction.
8.4 Be careful not to prejudice client’s chances by agreeing to expert being sent questions rather than being cross examined.
8.5 Get dates to avoid for expert for IRH and ensure expert told of contested hearing date ASAP
8.6 Do not agree to expert charging a daily rate for attending court. It still has to be at hourly rates.
8.7 Send all updating papers to expert in good time.
8.8. Note the rules on cancellation fees (above) and do not pay these unless within the rules
9. Paying the expert
9.1 Ensure that invoice has:
• Your client’s name
• A complete breakdown of time taken
• Your client’s share
• The hourly rates set out
• Nothing on it that cannot be claimed (eg typing or postage)
• Expert’s address
9.2 If invoice not good enough send it back for correction.
9.3 If invoice OK then submit claim on account and pay monies when received within 14 days.
9.4 If expert claim reduced on appeal then claim money back but do not expect to receive speedily.
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