LAA’s refusal to fund full cost of expert report deemed unlawful

In the case of JG v the Lord Chancellor the Court of Appeal has ruled that the Legal Aid Agency acted unlawfully in refusing to fully fund the cost of an expert report under the child’s legal aid certificate.

In the original proceedings (under Section 8 of the Children Act 1989) the child had been legally aided, however neither parent had the benefit of legal aid and had represented themselves. The Court had ordered that the costs of a psychotherapists report be funded by the child, considering it to be a reasonable disbursement under the terms of her public funding. The LAA had subsequently refused to pay more than one third of the costs of the report pursuant to s22(4) Access to Justice Act and contended that the costs of the report should be divided equally between the parties irrespective of their funding positions.

Judicial review proceedings followed and the High Court ruled that the LAA were not normally obliged to meet the full costs of the report where the child is legally aided and the parents can’t afford to contribute to the cost.  They did however acknowledge that there may be some rare cases where the rights of the child would require the legal fund to pay.

The appeal against the High Court’s dismissal of the judicial review claim has this week been allowed by the Court of Appeal. The Judgment concluded that it was ‘tolerably clear’ that the idea of an expert was the guardian’s and it was the guardian’s proposal that the expert be instructed. Lady Justice Black added:

“In any event, it seems to me that, notwithstanding that the district judge decided to order a joint instruction, the proper interpretation of what happened…..was in fact that he was completing the process instigated by the guardian………and authorised by him then and that the report was, in substance, ordered at her request in order to address issues that needed to be addressed in the interests of the child. As I have said earlier, the fact that other parties may have an input into the report does not convert it into their report or necessarily render them liable for the costs of it. What matters, in my view, is the substance of the transaction.” 

The decision by the LAA not to fund the report in full was declared unlawful.  The LAA will therefore be required to look at the facts of each case when determining whether it should pay the fees of an expert in full. Lady Justice Black concluded by saying:

“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. It goes almost without saying that solicitors should be careful to avoid disputes of the type that has arisen here by seeking prior authority for any instruction of an expert.”

A copy of the Judgment can be found here.