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UK restricts state funding of expert witnesses

Editorial Staff

A decision in an English court in the case of JG v the Legal Services Commission says that a party who is in receipt of legal aid (state funding) will not generally be authorised to obtain an expert witnesses report with full funding. But it's not that simple.

The case was decided in the High Court but arose out of a case in the Family Division. The decision may be applied in other courts, raising the prospect of widespread problems in obtaining unbiased opinion in a range of cases.

In the instant case, the Family Division court ordered an expert's report in case where a father had applied to the court for an order for access to his daughter.

The mother opposed the application and the Court ordered the production of an expert's report. Neither parent was in receipt of state aid and both appeared as litigants in person i.e. without the benefit of legal representation.

The child, however, was separately represented and was in receipt of legal aid. The Legal Services Commission (now renamed The Legal Aid Agency) decided that the case between the parents was a private action between two individuals. The child was represented in order to protect its interests but not as a principle party.

The Judge ordered that those representing the child obtain the report. That, on the face of it, was a sensible decision: the interests of the child are paramount and the Court wanted the benefit of a report.

The court did not order all three parties to obtain a joint report, an option that would have been available to it - although that would, no doubt, have led to arguments as to which expert should be appointed unless the court issued appropriate directions.

When those representing the child sought authority from the LSC for the funding of the report, the LSC said that it would pay one third. The child sought judicial review of the decision - hence the title of the action. The LSC did not appear but in a letter to the Court said "‘It cannot be right for the legal aid fund to be expected to pay for the entire costs of reports in order to subsidise a private law dispute where neither parent is prepared to pay their share.’

The LSC said that where the decision would be different if one of the parties were a public body, for example a local authority.

In an interesting argument on the status of an expert's report, the LSC argued that the report was for the benefit of all parties. However, the established principle of an expert's report is that the expert is to aid the Court and is non-partisan. The non-partisan aspect may not be the reality but it is a long held principle.

Both the Law Society of England and Wales intervened in the case. However, it appears that they did not raise the constitutional argument that the LSC - as representative of the Executive - was interfering with the decision of the Court and therefore acting in breach of the separation of powers.

The Secretary of State for Justice also intervened - taking the position as explained later by a spokesman that " ‘Those involved in legal cases should contribute towards costs and fees when able to do so, including paying for expert witnesses. We believe it is only fair these costs are shared equally between those involved.’"

But the decision seems to create the opportunity for one party to simply refuse to pay for a report and therefore prevent the preparation of the report. There is no mechanism for the court to make a costs order in advance of costs being incurred. And it is highly unlikely that a contempt order would be sustained for refusal to fund a report.

The problem is likely to become frequent as legal aid becomes ever more difficult to obtain and, even if it is available, increasing numbers of competent practitioners are abandoning the scheme because of the cash flow and balance sheet burden it places on their practices. Indeed, as from 1 April, legal aid will not be available in most cases in the family courts.