Family Law - Who pay the joint expert?

25.03.2005

When a dispute arises over who should take care of the joint expert’s costs in care proceedings, there is no statutory guidance to turn to. Janna Lawley reports on the recent case of Calderdale MBC v S that considered the issue on appeal and offers practical tips on instructing expert witnesses in the Family Division.

The question of who should pay the costs of jointly instructed expert reports in care proceedings is one which has been widely debated outside the doors of Family Proceedings Courts. As yet, however, there has been no determinative established practice. In the absence of any statutory or regulatory guidance, Bodey J considered the issue on appeal and gave practical guidance in Calderdale MBC v S and The Legal Services Commission [2004] EWHC 2529 (Civ).

The facts

The Local Authority had concerns about the Mother's care of her premature twins from birth, and sought interim care orders. The focus of the interim care plans was for rehabilitation with the Mother and for a residential assessment. This subsequently changed owing to the risk of infection to the twins in such a placement, and the plan became foster care with the possibility of a residential assessment subject to review. Subsequently, and during the course of the proceedings, it was agreed that the Court would be assisted by a jointly instructed psychological assessment of both the Mother and Father. The question arose as to who should pay the costs of that assessment, and the Family Proceedings Court ordered that the costs should be borne on the "moiety" basis of apportionment; that is, 50% by the Local Authority and 50% by the other parties (the Mother, the Father and the Children's Guardian), who were publicly funded by the Legal Services Commission ("LSC"). The Local Authority appealed that decision and the LSC cross-appealed to the effect that the Local Authority should have been ordered to pay 100% of the costs.

The LSC's case

The LSC guidance issued on the question was that if the report was neither part of the local authority's core assessment of the family nor an assessment of the child under s38(6) of the Children Act 1989, the costs should be borne on the moiety basis. It was acknowledged that the moiety basis was not logical according to the Court's conventional approach to costs orders, but it was argued that it was a purely pragmatic solution in what was effectively an apportionment of taxpayers' money. Accordingly, the LSC's case proceeded along the lines that jointly instructed reports such as the one in question should be part of the Local Authority's core assessment and/or the general preparation of its case for a care order. The determinative factor was said to be one of "reasonableness"; should the Local Authority have reasonably covered the matter as part of its preparation? If so, then the Local Authority should bear 100% of the costs.

The Local Authority's case

The Local Authority agreed that if a s38(6) assessment of the child had been ordered then it would have had to fund that assessment alone. It was noted that all reported cases concerning s38(6) proceed on this assumption and no argument was advanced regarding this. In relation to other jointly instructed assessments, it was argued that the test was as to the existence (or degree of likelihood) of proceedings. If the Local Authority needed the report to inform itself as to the child's needs in order to make decisions in pursuance of its statutory duties, it should bear the sole cost. If, however, proceedings were at a stage whereby the Court needed to collate the necessary evidence in order to resolve the issues through to final determination, then it became imperative to use a jointly instructed expert, as is the accepted procedure in the Family Division. To do otherwise would be wholly inappropriate with regard to the parents Article 6 ECHR rights extensively examined in Re L (Care Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730.

The judgment

General considerations

The Honourable Mr Justice Bodey held that the problem may be likened to the elephant; easy to recognise but difficult to define. From experience it is relatively easy to recognise the sort of report which should be obtained solely at the expense of the Local Authority from the jointly commissioned specialist forensic overview which is expected to be funded by all parties. However, it is much harder to produce a definitive distinction. Although Bodey J was keen to discourage future argument before the Court on this issue, and maintained that wheresoever possible the matter should be resolved by agreement, he stated the following non-exhaustive considerations:

The Court has to exercise its discretion to apportion the costs fairly and reasonably, bearing in mind all the circumstances of the case;
In so doing the Court will have regard to the reasonableness with which the local authority has conducted the information-gathering process and the degree of competence and 'thoroughness';
Competence and 'thoroughness' is a relevant factor because there may be cases where the local authority has done little or inadequate preparation. For example, where the instruction of an independent social worker is proposed when the local authority would normally have been expected to undertake the work as part of its core preparation, it will almost certainly be ordered to pay 100% of the costs;
The Court will have regard to the extent to which the report in question goes merely to satisfying the "threshold" criteria, as distinct from helping the Court to decide more generally what overall "outcome" would best serve the child's interests;
A further consideration is the type of expert concerned and the nature of his/her involvement. 'Treating' experts and others who have had a "hands on" role with the family already are more likely to be paid for by the local authority. Conversely, the fees of a purely forensic expert brought in specifically to make a full overview report to the Court are more likely to be shared between the parties;
One reason that the costs of a jointly commissioned report will generally be ordered to be shared in some way is that each party has an interest in having confidence in the integrity of the forensic process;
The fact that a party is publicly funded is not a reason for taking a different decision about costs from that which would otherwise have been taken (s22 of the Access to Justice Act 1999).

The instant case

Bodey J held that it was immediately apparent that the costs of the report should be shared in some way, because:

It was clear that the report was designed to assist the Court as to "outcome" part of the case. The Local Authority would have had a sound case on the threshold criteria even without it;
The report was agreed by all the parties to be necessary and was dealt with in context of ongoing legal proceedings; · Each party had an interest in the report being available to Court and each had a potential benefit from it;
The Local Authority had worked conscientiously in organising comprehensive assessment reports of a less specialist type. There was no question here of the Local Authority attempting to duck its responsibility to present a proper case to the Court and/or of its trying to share cost which it should have borne alone;
There would have been potential problems under Article 6 of the ECHR if the Local Authority had unilaterally instructed an expert at is own expense. Parents need to know that reports which may have "a preponderant influence" (per Munby J in Re L) are not being prepared at the sole expense of the Local Authority;
There would be further expense to the LSC if such reports, solely paid for by the Local Authority, were to lead to subsequent applications by dissatisfied parents for second opinions.

Apportionment of shared costs

Having found that the Local Authority and the LSC should share the costs, Bodey J turned to the question of the appropriate division and held that although there was superficial attraction with a 50/50 apportionment of public money, costs orders are made against parties and not funds. To make such an order would be out of step with the rationale and conventional use of costs orders and would be a blatant contravention of s 22 of the Access to Justice Act 1999. It was plain that the Mother, the Father and the Guardian had all been informed by the report and consequently the Local Authority constituted only 25% of the benefit of the report. It was accordingly appropriate to allow the Local Authority's appeal and make an order for the costs of the report to be borne equally between the parties.

Future application

It was made plain by Bodey J that there will be cases where some of the parties will not benefit from the jointly commissioned report, such as those cases where a party has intervened on a discrete issue. In those circumstances that party should not be required to contribute to the cost of such a report. Likewise, there will be cases when even though the costs of the report should in principle be shared, some apportionment other than "equally all round" would be appropriate. Therefore, a blanket policy cannot be stated. However, it is abundantly clear that local authorities will be seeking to make use of this judgment whenever possible to balance their finite budgets. No doubt court corridor discussions about the apportionment of costs in these cases will continue, but the focus will now shift from trying to determine what is the established and correct practice to "spotting the elephant".

Instructing expert witnesses in the Family Division

The instruction of single joint experts is now generally accepted to be the appropriate course across the entire Family Division; not just for those concerned with care proceedings.

For advice on instruction, those concerned with ancillary relief proceedings are referred to the Best Practice Guidance [2003] 1 FLR 573; and for Children Act proceedings, both public and private law, to Section 5 of The Children Act Advisory Committee Handbook of Best Practice in Children Act cases (CACC, 1997). There is also a useful precedent for a letter of instruction in Children Act cases in the Children Act Advisory Committee Annual Report 1994/5 (Reproduced in The Family Court Practice 2004).

Generally, any letter of instruction should include:

basic relevant information defining the context in which the expert's opinion is sought;
any assumptions which are to be made by the expert;
any relevant known issues to enable the expert to give an opinion on each set of competing issues;
the specific questions to be answered;
arrangements to be made for meetings, appointments etc.;
the timetable for filing the report and dates of any relevant court hearings which the expert will be required to attend;
a bundle of the documents necessary for the expert's consideration, clearly paginated and indexed

Important points to remember are the following:

You will need to seek leave to disclose the papers in Children Act matters before they are sent to the expert concerned;
You will further need leave for the expert to see the child, if that is required;
If a number of experts in the same field have been appointed, provision should be made for them to discuss the matter in order to identify areas of agreement and disagreement
If experts do discuss the matter will other professionals, it is essential that a record is made of their discussion

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