As I’m sure I’ve explained here previously, I don’t normally comment upon public law cases (i.e. children cases involving local authorities, normally care proceedings), as I haven’t done any public law work myself for about twenty years. However, the recent judgment J (A Child : Care Proceedings : Apportionment of Experts’ fees) deserves, I think, some comment, even from a non-expert like myself.
The case concerns care proceedings taken by Derby City Council in relation to a three month old boy. The proceedings were instituted after the boy was found to have sustained skull fractures and a subdural haemorrhage. It is the Council’s case that these injuries are non-accidental injuries and that one or other of the boy’s parents is responsible for causing them.
The Children’s Guardian obtained permission from the court to instruct two medical experts, a consultant neuroradiologist and a consultant paediatrician, and the question then arose as to how the experts’ fees should be apportioned between the parties.
Perhaps the most remarkable thing about the case is that, despite originally consulting solicitors, and despite the availability of free legal aid, the parents have decided to proceed with the case as litigants in person. As the judge, His Honour Clifford Bellamy, explained these were complex proceedings with the potential for a very serious outcome should the court find that the injuries are non-accidental, and that one or other or both of the parents is responsible. The boy could be taken into care and placed for adoption. Quite why, in such circumstances, the parents should take the extremely unwise decision to act as litigants in person, one can only guess. I wonder, in particular, whether this may be another example of the parents believing that the entire system, including all lawyers, is biased against them. If so, then whoever put that foolish notion into their heads was doing them a severe disservice.
The parents’ decision had another effect, in respect of the payment of those experts’ fees. Normally such fees would be shared equally between all four parties: the two parents, the Children’s Guardian and the local authority, with the first three being paid by legal aid. Here, the parents did not have legal aid, and nor did they, as Judge Bellamy found, have the means to pay themselves. That just left the guardian and the local authority, and if the fees were shared equally between them then that would obviously mean that the local authority would be required to pay twice what they would normally have to pay.
There was another issue in relation to the fees. There are prescribed limits to the experts’ fees payable by the Legal Aid Agency (LAA), which can only be exceeded with prior authority from the LAA. Here, the consultant paediatrician was prepared to accept the prescribed rate, but the consultant neuroradiologist was not. The prescribed rate for him was £136.80 per hour, but the rate he charges is £180 per hour. As he said, £180 per hour is the rate the LAA would allow for a neuroradiologist instructed in a cerebral palsy clinical negligence case, and he could see no justification for considering his time to be worth less when instructed in cases in the Family Division. Unsurprisingly, Judge Bellamy agreed, and he found that there were exceptional circumstances justifying payment at a rate above the prescribed limit.
Judge Bellamy looked first at the issue of apportioning the fees. As he quite rightly pointed out, he could order the parents to pay their proportionate share, but that would obviously be futile, as they can’t afford to pay. He therefore decided that the fees should be shared equally by the guardian and the local authority.
Turning to the issue of the neuroradiologist’s hourly rate, the problem was as follows. The neuroradiologist sought payment for ten hours work, the maximum allowable by the LAA. His fees therefore came to £1,800, some £432 more than the prescribed rates allowed. Accordingly, if the LAA did not authorise payment at the higher rate then the solicitor for the guardian would have to pay £216 more than she would be entitled to claim back from the LAA. As Judge Bellamy said, this was a risk that the solicitor should not be expected to take, and could not be compelled to take.
In the circumstances, the LAA could thwart the will of the court for there to be an expert’s report. Judge Bellamy therefore stipulated that the guardian’s solicitor should make the application for prior authority immediately, that the LAA should deal with it as quickly as possible, and that if it refuses the application it should give full reasons for doing so, so that the refusal can, if appropriate, be challenged speedily.
It will be interesting to know what the LAA decides – hopefully, we will be told. For my part, I really think that if a court decides that certain expert evidence is necessary then, provided the expert’s fees are not entirely unreasonable, it should not be within the power of the LAA to thwart the will of the court.
The full report of the case can be found here.
Photo by Adrian Clark via Flickr under a Creative Commons licence.