Mental Capacity Case

R (T) v Legal Aid Agency

Collins J

Summary: In this case there was a successful challenge to the refusal of the Legal Aid Agency ("LAA") to authorise the cost of obtaining expert evidence in care proceedings. The court granted the four parties in the family law proceedings permission jointly to instruct a well-known service ("the MFS") to carry out a multi-disciplinary assessment of the parents and children. The directions given by the district judge in relation to the expert evidence complied with the guidance given by Sir Nicholas Wall, P in A Local Authority v S and others [2012] EWHC 1442 (Fam); [2012] 1 WLR 3098 and included the following:

"(b) the proposed assessment and report are necessary to the resolution of this case for the following reasons: a multi-disciplinary assessment is necessary for the court to determine whether the parents are able to meet the children's needs.

(c) this case is exceptional on the facts because there are allegations of neglect in respect of six children under 10 years

(d) the costs to be incurred in the preparation of such report shall be paid by the parties in equal shares and are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.

(e) the court considers the hourly rate of £90 to be reasonable in the context of their qualifications, experience and expertise.

(f) the field in which this expert practises and the particular expertise which they bring to bear on this case is highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at a lower fee.

(g) the issues in this case are not appropriately addressed within the evidence before the Court."

MFS estimated that the cost of its multi-disciplinary assessment would be between £23,550 and £31,650. The district judge directed that she considered the total amount of £31,650 to be reasonable in the context of the experts' qualifications, expertise and experience. The order went on to record that the particular expertise of MFS was highly specialised and there was no realistic prospect of finding an alternative expert with the necessary expertise at a lower fee. However, the LSC decided that it would only give prior authorisation for one quarter of a maximum amount of £19,170 (over £4,000 less than the minimum amount calculated by MFS). As a result of this, MFS refused to carry out the multi-disciplinary assessment.

An application to judicially review the decision of the LSC was made on behalf of the six children. In the course of his judgment Collins J referred to the detailed guidance given by Sir Nicholas Wall, P in Local Authority v S and others, cited above. The key aspects of this guidance may be summarised as follows:

(i) Where the party or parties who seek to instruct an expert are publicly funded there is no doubt that the LSC (now the LAA) has the power to refuse to fund the instruction or fund the instruction in part only. Such a decision can be challenged by way of judicial review.

(ii) Advocates should explain to the judge why a particular expert is required, noting that the current pressure of work means that the judge may not have time to master the details of the documents in the case but that where possible the court should read the relevant papers and record this on the face of the order.

(iii) Where the court takes the view that the expert's report is necessary for the resolution of the case, it should say so and should give reasons. The reasons need not be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has, particularly if the expert's rates exceed the maximum rates ordinarily allowable. This can be done by way of preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge's approval.

(iv) There is a need for the LSC (now the LAA) to deal with applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its (at least concise) reasons for its decision. Whilst the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rate the expert demands, such a suggestion, in reality, is unreal.

Collins J also set out the guidance from A Local Authority v S and others concerning the need for the LSC to give reasons for its funding decisions. He echoed and endorsed that guidance and went on to say (at paras 14-16):

"While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.

The letter [from the LSC] gives no reasons to explain why the full sum put forward is not approved. Since the defendant appeared through its representative, Mr Michael Rimer, at the hearing of S it was clearly aware of the President's guidance. Guidance in this field from so authoritative source as the President, in a reserved judgment after hearing submissions from, amongst others the LSC, gives rise to a public law duty upon the LSC, capable of being enforced, as the President said, by judicial review. Ms Hewson has sought to rely on the real difficulties faced by the defendant in dealing with the increasing number of applications for prior approval. In the S case it had been shown that following the new funding order in October 2011 introduced as part of the legal aid reform programme designed to save costs applications for prior approval of experts increased from 216 in November 2011 to 1855 in April 2012. That increase has, I was told, continued. Ms Hewson said that 4 employees in an office in Wales now had to deal with some 100 applications each week. That I suspect was something of an exaggeration but the point she was seeking to make was that the burden on those responsible for making the decision was such that they did not have the time to enter into any discussion nor to give any substantial reasons. Attempts to save costs in one way can have an effect which increases costs in another. If as a result of the new rules introduced in October 2011 greater pressure is imposed resources must be provided to meet that pressure. In R(H) v Ashworth Hospital Authority [2003] 1 WLR 127 at paragraph 76 Dyson LJ said this:

'I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.'

These observations apply a fortiori where there is an absence of reasons when reasons are required.

It is also important for the expert to explain why the work which will be charged for is needed, particularly if, as here, the overall figure is large. Those instructed to do work in publicly funded cases must recognise that they will be asked for such explanations and so should spell out in sufficient detail, which need not be extensive, why the work regarded by them as necessary will be needed. It may be obvious in some cases and no more than an indicator of the anticipated hours within a bracket for a particular piece of work may be needed."

Critically, Collins J went on to hold that the LSC would need very good reasons to refuse prior approval where a judge had decided, and given reasons why, such expert evidence was necessary (at para.17):

"Now that the instruction of experts can only follow if a judge so orders because he or she is satisfied and gives reasons for being satisfied that it is necessary it seems to me that the [LAA] should only refuse to give prior approval if it has very good reasons so to do. While the judge's decision is not binding, it must carry very considerable weight. If there is good reason to reject it in whole or in part the [LAA] should engage with the court. This can I suspect be dealt with in many cases in writing. If the judge, having considered the [LAA]'s representations, maintains his or her decision it is difficult to see how a continued refusal to give effect to it could be other than unreasonable. In some cases oral representations may be considered necessary. If the defendant is prepared to engage in this way extra costs will be avoided and it seems to me to be an entirely reasonable way of dealing with the problem. Where, as here there is a bracket, it is difficult to justify approval of a lesser sum than the maximum (assuming the proposed work seems overall to be needed) since, if less than the maximum is carried out, payment cannot be sought for more than is one." (Emphasis added)

On the facts of the present case, Collins J found that no reasons were given by the LAA. He said (at para.20):

"This might not have led to any relief beyond a declaration if I were persuaded that the only result could be that the decision was confirmed. Not only am I not so persuaded but I find it difficult to see that it would be reasonable, at least without engaging with the judge whether in writing or orally, to fail to comply with what she has decided is necessary."

The decision of the LSC was quashed accordingly.

Comment: By analogy, this case provides a timely indication of the way in which the Administrative Court is likely to approach challenges to the LAA's refusal to authorise expenditure on expert reports in Court of Protection. However, it should be remembered that the test for expert evidence in family law proceedings is now one of necessity, whereas the Court of Protection Rules set a lower test and provide that expert evidence must be "reasonably required to resolve the proceedings."

The case demonstrates the real difficulties and delays that can arise as a consequence of disputes over funding for expert reports. The frustration on the part of the MDF is clear from a letter written to the claimant's solicitors: "I have already explained that we are running at a loss, having to charge half of our original fees, and that our NHS Trust will not tolerate further reductions, or acceptance of protracted complications caused by the changes within the LSC and the inconsistencies in how each case appears to be managed." Collins J appeared to share this frustration and was also critical of the LSC for failing to attend court when directed to do so by the district judge. The policy of the LSC not to attend hearings, but to offer instead to speak to the judge by telephone, appears to remain in place, despite having been described by the President in A Local Authority v S and others as "manifestly unsatisfactory".

In light of this decision, it is advisable for parties seeking permission for expert evidence to observe the requirements of rule 123(2) of the COP Rules (which, in the experience of the editors, are sometimes overlooked). Where there is reason to believe there may be a dispute over funding, it is advisable to invite the court to expressly recite in the preamble to the order:

  1. What relevant papers it has read;
  2. the reasons why it considers that the expert evidence is necessary or reasonably required to resolve proceedings, which should include the reasons why the evidence would not otherwise be available to it as part of the proceedings;
  3. the reasons why the volume of work is required, if it is a particularly complex report;
  4. the reasons for why there is any need to exceed the maximum rates usually allowable by the LAA; and
  5. the reasons why there is any departure from:
i. the principle that the costs of a single joint expert will be shared equally between the instructing parties, particularly if this has the effect of placing a disproportionately high cost burden on the party or parties in receipt of legal aid (this should include a robust scrutiny of the means of any party claiming to be unable to afford the cost of the instruction); or

ii. the principle that the instructing parties are to be jointly and severally liable for the costs of single joint expert.

The refusal of the LAA to authorise funding for expert reports may also have consequences for the other instructing parties. Where there is a single joint instruction, unless the court orders otherwise and subject to any final costs order that may be made, the instructing parties are jointly and severally liable for the payment of the expert's fees and expenses.

Finally in this regard, we should note that the MOJ has an open consultation at the moment as to introducing minimum standards for expert witnesses giving evidence in proceedings relating to children (the deadline for responses being 18 July 2013), and we would envisage that a similar approach is likely to be adopted in the CoP arena in due course. The proposed standards cover areas including: (1) the expert's area of competence and its relevance to the particular case; (2) maintaining expertise through Continuing Professional Development activities; (3) statutory registration or membership of an appropriate professional body; (4) applying the standards to overseas experts; (5) compliance with the Family Procedure Rules and Practice Directions; (6) seeking feedback from solicitors and the courts; and (7) good practice in relation to fees in publicly funded cases.