Expert evidence: cost-cutting measures make their impact felt
The Legal Aid Agency (LAA) came into existence on 1 April 2013. Its creation followed the abolition of the Legal Services Commission by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Its remit is to commission and procure legal services. Its stated aims are:
- to improve casework in order to reduce cost, enhance control and give better customer service;
- to improve organisational capability to meet the challenges ahead, including developing and engaging our people; and
- to build and maintain strong partnerships to secure quality provision and contribute fully to wider justice and Government aims.
In its first month, the LAA set out plans to significantly reduce legal aid spent in the coming financial year. Most attention given to these plans has been, understandably, to the proposed structural and substantive changes to criminal legal aid. However, another of its targets was to reduce spend on counsel and expert witnesses. These plans have now come in for criticism from the High Court.
In September last year the six children of Mr and Mrs T were removed from their care and placed with foster carers. The London Borough of Ealing was of the view that the best course of action for the children would be to have them removed from their parents' case permanently. A timetable was set to have proceedings concluding by April 2013, although this was subsequently extended to 15 May 2013 due to one of the children having been removed to Bangladesh. In October 2012, the district judge gave permission for a named adult psychologist to be instructed to report on the parents, namely on their attachment to the children and their capacity to meet the childrens' needs. There was also to be a multi-disciplinary assessment of the childrens' needs. The district judge made it clear that recourse to these services was essential in this case and that her assessment could not be complete without it. She added that an hourly rate of £90 was reasonable given the qualifications and expertise the named psychologist had in this field, and that there was no prospect of finding a cheaper alternative. The costs were to be shared equally amongst all the parties.
The matter did not come before District Judge Gibson again until February 2013. By this, the Family Procedure Rules had been amended, with Rule 25.1 stating that:
‘Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.'
In considering the question of necessity, District Judge Gibson expressed her decision in terms almost identical to those used previously: that the report and multi-disciplinary assessment were essential to the resolution of case; that the facts were extraordinary, concerning alleged neglect of six children under the age of ten; and that the expertise and experience of the named psychologist meant that there was no prospect of finding a cheaper alternative. This time, instead of citing the £90 an hour figure, District Judge Gibson quoted a figure of £31,650. This is because the provider instructed to undertake this work was unable to provide a clear guide to the number of hours required, and had instead provided a range of potential prices, with £31,650 being the maximum.
The LAA initially said that it would only fund 131 hours of work (less than half of that quoted for) on the basis that it amounted to residential assessment and was thus outside the scope of legal aid. This was later recognised to be a mistake, but led to yet another hearing, at which District Judge Gibson expressed her concern at the delay. It was at this point that the claim for judicial review culminating in the recent High Court decision was launched. In his judgment on the judicial review, Collins J echoes District Judge Gibson's criticism of the Legal Aid Agency's policy not to attend court even when instructed to do so - its suggested alternative of speaking to the judge over the phone was described as ‘hardly a satisfactory arrangement.' Although it subsequently recognised its mistake, the final sum for which LAA gave prior authorisation was £19,170 - approximately £4000 less than the minimum cost quoted by the provider. The provider refused to carry out the work, and the judicial review claim began. In its refusal, the provider noted that it was already quoting services at half their original cost, and that additional problems were arising as a result of inconsistency in how cases were managed and delay caused by changes within the Legal Services Commission (presumably those arising from its transition to the LAA). They also noted the wider significance of these problems as they impacted on vulnerable children and their families.
The judicial review case was heard in April, with Foskett J noting the wider impact on prior authorisation of expert evidence. The LAA appears to have argued that a better course of action would have been for the childrens' solicitors to instruct the assessments and then try to persuade the LAA to pay any excess amount, thus taking the risk of non-payment upon themselves. The LAA clarified that it is willing to consider applications for assessment to be increased before final payment where expert costs rise unexpectedly; however, this was not immediately clear from the LAA's own guidance.
Foskett J recognised that the LAA is, of course, entitled to question the assessment of the need for and cost of expert evidence. It can refuse an application which it deems to be excessive. However, it must act reasonably. As it is for the judge to make the order regarding instruction of experts, it is for the judge to take a decision, following submissions from the parties, as to whether it is necessary, the reasonableness of the hours and the level of expertise required. The judge must be sure to give reasons, which must in particular address why, if the judge has so decided, it is necessary that the expert be paid more than would usually be paid under the Funding Order. Although nothing in statute required the LAA to give reasons for its decisions, this would in fact be important in children cases, particularly ones such as these where Article 8 of the European Convention on Human Rights was engaged and the welfare of the child had to be the prime consideration.
Echoing the then President of the Family Division in A Local Authority v S and others, Foskett J emphasised the need for cases involving children to be resolved quickly. Reasons assisted here in that they allowed a challenge to a decision of the LAA to be brought with greater speed. The decision in S and the guidance given by the then President gave rise to a public law duty to give reasons; it was not enough for LAA to argue that it did not have sufficient resources to fulfil the duty. Foskett J noted that ‘attempts to save costs in one way can have an effect which increases cost in another. If as a result of the new rules introduced in October 2011 greater pressure is imposed resources must be provided to meet that pressure.' The resource argument was simply not relevant.
At the same time it was incumbent on experts carrying out work in publically funded cases to explain why this work was necessary. The LAA should be prepared to give reasons for its refusal to provide funding, or funding at the suggested level. This was important not only because their refusal would be contrary to a decision of a judge that expert involvement was necessary, but also because it could avoid judicial review claims and greater expenditure.
Although this case arose in the context of family proceedings, in provides a useful insight into the developing relationship between the courts and the LAA as legal aid changes develop and unfold.
  EWHC 960 (Admin).
 Ibid, at para 6.
  1 WLR 3089.
  EWHC 906 (Admin) at para 15.
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