The Court of Appeal has decided that the Legal Aid Agency – formally the Legal Service Commission (LSC) – was wrong to refuse to pay in full from the legal aid budget for an expert witness report ordered for a child by the family court.

The case followed the LSC’s refusal to pay more than one-third of an expert’s fees because it believed that the parents should have been required to pay the other two-thirds.

The Law Society intervened in the case of JG v The Lord Chancellor because it has important implications for solicitors instructing experts in these cases. Solicitors need to be clear from the start who will be paying for the expert they instruct. The case also raised a ‘question of general importance’ about the lawfulness of the LSC’s actions.

The Court of Appeal commented: ‘Nobody can be in any doubt that the general question encapsulated a real issue of very considerable importance in private law proceedings relating to children in the wake of the severe restriction on public funding for those involved in such proceedings.’

The Lord Chancellor, for the LSC, argued that parents who are not legally aided should pay their share of the expert’s fee. The Law Society argued that this could not apply in this case because the expert was instructed by the child alone. As the parents were not seeking to present expert evidence, the issue of sharing the costs did not arise.

The court accepted the Law Society’s argument that where an expert’s report is sought by the child alone, it will be legitimate for the legal aid budget to bear the full cost. Moreover, the court went on to say that ‘it may not be all that infrequent’ that this is the case.

The judgment means that in future the Legal Aid Agency must look at the facts of a specific case to decide whether it should pay the fees in full.

It also means that where unrepresented parents cannot afford to commission expert evidence but the court and the child’s guardian considers such evidence necessary, it may still be appropriate for the full costs to be borne by the child through their legal aid certificate.

The Court of Appeal went on to reject the Lord Chancellor’s argument that there is any ‘normal rule’ that costs should be apportioned equally even where a single joint expert is instructed by all the parties.

Law Society president Nicholas Fluck said: ‘The family court has to be able to obtain the expert evidence it needs to help it decide a child’s future without being blocked by the legal aid authorities, otherwise the court and the child are left without a report that the judge has said is needed. The Law Society intervened in this case to break that deadlock.

‘The LSC and Lord Chancellor’s position has left many family cases at an impasse where expert evidence that the Court has deemed necessary is not available. This situation could not be allowed to continue and we welcome the Court of Appeal’s decision.’

Read the judgment

The Legal Services Commission – now the Legal Aid Agency – is the government body responsible for the administration of legal aid in England and Wales.

In 2012, the High Court invited the Law Society to intervene in the judicial review application that was brought by a solicitor’s firm in Kent following an original county court decision in 2009 to ask for the legal aid budget to pay for an expert report ordered on the child’s behalf, because the case raised issues of public importance. Following the Law Society’s intervention, the Justice Secretary also intervened.