The Court of Appeal has recently decided that the Legal Aid Agency - formally the Legal Service Commission (LSC) - was wrong to refuse to pay in full from the legal aid budget for an expert witness report ordered for a child by the family court.
The case followed the LSC's refusal to pay more than one-third of an expert's fees because it believed that the parents should have been required to pay the other two-thirds.
The Law Society intervened in the case of JG v The Lord Chancellor because it has important implications for solicitors instructing experts in these cases. Solicitors need to be clear from the start on who will be paying for the expert they instruct. The case also raised a 'question of general importance' about the lawfulness of the LSC's actions, says the Society.
The Lord Chancellor, for the LSC, argued that parents who are not legally aided should pay their share of the expert's fee. The Law Society argued that this could not apply in this case because the expert was instructed by the child alone. As the parents were not seeking to present expert evidence, the issue of sharing the costs did not arise.
The court accepted the Law Society's argument that where an expert's report is sought by the child alone, it will be legitimate for the legal aid budget to bear the full cost. Moreover, the court went on to say that 'it may not be all that infrequent' that this is the case.
The judgment means that in future the Legal Aid Agency must look at the facts of a specific case to decide whether it should pay the fees in full, says the Society.
It also means that where unrepresented parents cannot afford to commission expert evidence but the court and the child's guardian considers such evidence necessary, it may still be appropriate for the full costs to be borne by the child through their legal aid certificate.
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