The Court of Appeal quashed the decision of the legal aid authorities not to fund the whole of the cost of an expert’s report in private law family proceedings. It gave general guidance on liability for the fees and expenses of an expert whose evidence the court considers necessary when a child is a party to the proceedings and in receipt of legal aid but the adult parties are not assisted. Where the expert is instructed by the child’s guardian, her fees and expenses will be a disbursement to be met in full by legal aid provided prior authority is obtained. Where there is a single joint expert, unless the court otherwise directs, those parties instructing the expert will be jointly and severally liable for his fees and expenses. The Court recognised that respect for the child’s convention rights under articles 6 and 8 of the ECHR is likely to require the costs of any necessary expert evidence to be borne by the child on legal aid to the extent that the other parties cannot afford to contribute and that in some cases it may be preferable for the court to direct the child is to be liable (leaving it open to the court to order the other parties to contribute to the costs thereby incurred by the child on legal aid) to avoid delay in the resolution of the proceedings arising from a dispute about their means. The Court rejected the Lord Chancellor’s contention that equal apportionment was the normal order and a number of his arguments why the child on legal aid should not be required to pay more than a proportionate share of the costs.
The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2014/656.html
John Howell QC represented the Law Society intervening in the appeal.