On Recovering Expert Fees from the LSC

Expert invoices need to have a full breakdown of their fee and show the hourly rates and mileage rates charged. So for example an invoice should show the preparation time and rate, the travel time and rate and any other expenses including mileage. There are maximum rates in place for expert fees and if those rates have been exceeded without prior authority the claim will be rejected.

 In addition the LSC will not pay the following:

 Travel charged at more than £40 per hour

Mileage charged at more than 45p per mile

Administration charges

Cancellation fees if attendance properly cancelled more than 72 hours before hearing.

 The expert fees must also be apportioned between the relevant parties of the case irrespective of their funding positions, in accordance with Section 22(4) of the Access to Justice Act 1999. This prohibits Courts from making orders that impose liability for expert’s costs on those with legal aid if the other parties can’t afford to contribute. This is something that can cause significant problems. The Law Society has decided to intervene recently in one case and is to challenge by Judicial Review a decision by the LSC to only meet one third of the costs of an expert on this basis.

 If you want to obtain Prior Authority for an expert because the hourly rate is higher than the maximum or the number of hours is likely to be higher than normal then an APP8 should be submitted. Resolution have had a recent meeting with the LSC who have said that they are aware of the case of Re: DS and others (childen) [2012] EWHC 1442 (fam) in which the President of the Family Division, Sir Nicholas Wall, gives guidance on the question of prior authority in relation to expert evidence.

This was a case where the LSC after a 5 month delay the LSC refused to grant authority for an Independent Social Worker because they were charging £50 per hour which is higher than the LSC maximum of £30 per hour. In his judgment he proposes a possible form of order for the instruction of an expert depending on the facts of the case. This includes inter alia “The proposed assessment and report by X (as set out in paragraph    of this order) are vital to the resolution of this case” and “The field in which X practices, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at a lower fee”. He points out that that the LSC has the legal power to refuse to fund the instruction of an expert, regardless of the decision of the Court; however if a Solicitor takes the view that the LSC has acted unreasonably then the remedy is judicial review.

The LSC have informed Resolution that they recommend that solicitors have prescribed wording which they use on each occasion which complies with the guidance of the President. A copy of the order should be submitted with the APP8 (the LSC will accept handwritten drafts).