LSC to face judicial review over report costs
The Law Society is to challenge by judicial review a Legal Services Commission decision to meet just one-third of the costs of an expert witness report ordered by a county court on behalf of a child.
The LSC declined to pay the full costs of the report, arguing that the child, and his or her parents, had jointly instructed the expert witness and so should share the costs equally between them. The county court, in contrast, attached the full costs to the child’s legal aid certificate because neither parent could afford to contribute.
The decision could have important implications from April next year, when most legal aid is to be withdrawn from private law proceedings, leaving more children as the only publicly funded parties to cases and more parents representing themselves.
The case began in 2009 when a district judge ordered a report from a child and adult psychotherapist ‘in respect of the child in particular and the family dynamics in general’. The judge, who knew the parents’ financial circumstances, ordered that the report’s costs were to be funded by the child’s legal aid, it being a ‘reasonable and necessary disbursement to be incurred’.
The LSC responded that the order had been made without considering the provisions of section 22(4) of the Access to Justice Act, which prohibits courts from making orders that impose liability for a joint expert’s fees only on those with legal aid if the other parties cannot afford to contribute towards the costs.
The Law Society’s head of family and social justice Mark Paulson said: ‘We decided to intervene on the basis that the case raised public interest issues of general application and importance. We accept the force of the LSC’s argument, but relying upon it could mean denying the court access to evidence that it requires to reach a decision in the child’s best interest.’
The solicitor acting for the child, Andrew Pearson, of Kent firm Pearsons, has also sought permission for a judicial review of the LSC decision on the grounds that it is irrational.
Comments
Great example
What a great example to set: incurring costs of scores of thousands of pounds arguing about a report which presumably cost only a few thousand in the first place. Presumably, the child's application for permission to seek judicial review of the LSC's decision is funded by...the LSC.
Response to "Me"
Yes, the child's judicial review is indeed being funded by the LSC. However, on this occasion, I would not criticise the LSC for the position they have taken.
There is a statutory provision that says that a Court cannot order one party to pay the costs of a joint report just because that party is legally aided and the others are not. The LSC therefore argues that in law it should not be paying for the whole cost.
But merely stating that principle leaves us with an impasse where the Court needs a report but the other parties are unable to contribute to the costs. That is a scenario that is likely to arise much more often after LASPO is implemented.
This case is intended to set down guidelines as to how this issue should be addressed in future that will avoid such an impasse from arising. The LSC shares the aim of securing clear guidelines, even if we may have different views as to exactly what those guidelines should be.
This does, however, reflect a broader point we have made to Government on numerous occasions over recent months, namely that when you cut legal aid, there will inevitably be consequences elsewhere in the system, either loading costs onto the legal aid budget in different ways, or putting costs on other public budgets.
Richard Miller, Head of Legal Aid, Law Society