Experts in family cases must be especially careful to ensure their fees will be paid before accepting instructions. The funding of expert witnesses in family cases reached a stalemate this week after the High Court ruled that the Legal Aid Agency (LAA) - formerly the Legal Services Commission - was not obliged to cover the full cost of an expert witness. After intervening in the case, the Law Society reacted with disappointment at the ruling. The LSC is not normally obliged to fully fund the cost of an expert witness where the child is legally aided and the parents are unable to afford the costs.
Law Society president Lucy Scott-Montcrieff said: "The LSC's position simply results in deadlock. The court has first to decide that an expert report is necessary, not just desirable, to help it decide a child's future, but unless someone is able to pay - in this case the legal aid budget - there cannot be a report. The court's ruling does not address that impasse, and for that reason it is disappointing for those children who find themselves in the family court."
Following the family legal aid changes implemented last week, more cases will appear where children alone are legally aided, said Scott-Montcrieff. The High Court judgment in R (JG) v The Legal Services Commission followed the refusal of the LSC to pay more than one third of an expert's fees. The LSC's decision was based on section 22 (4) of the Access to Justice Act, which states that costs cannot be awarded against one party simply because they benefit from legal aid. "Reports required from the court for the child's benefit should be paid for by the legal aid budget where the parents are unable to contribute: it should not be enough to argue, as the LSC did, that the parents also benefit from a report."
Experts should ensure their terms and conditions cover the possibility of non-payment by the LAA and there is still recourse to the instructing solicitors.