COURTS ARE ‘GETTING STUCK’ 23 June 2014


Tighter restrictions on the use and funding of expert evidence in private and public law cases involving children have created problems. The abolition of legal aid for


most private law family cases and the cut in legal aid rates for DNA testing has seen laborato- ries – such as Manchester-based Trimega Laboratories, which also provided hair-strand substance abuse testing – go into administra- tion, leaving hundreds of cases in the lurch. The MoJ, working with the judi-


ciary and Cafcass, is to run a pilot scheme in Bristol and Taunton where funding will be provided for these tests in children’s cases. Justice minister Simon Hughes


says the scheme is intended to help avoid ‘unnecessary delays’, while the president of the Family Division Sir James Munby (pic- tured) hopes the pilot will ‘quickly demonstrate both the need for and the viability of such a scheme’. Munby has warned that the lack


of funding for experts where the parties cannot afford the cost risks unfairness. He recently adjourned


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EXPERT WITNESSES 15


a contact case (Q v Q [2014] EWFC 7) because the father, a convicted sex offender, was unrep- resented and unable to fund an expert to challenge the mother’s evidence. He asked the MoJ to intervene to address the issue. Elspeth Thomson, family


partner with Newcastle-based David Gray and co-chair of Resolu- tion’s legal aid committee, says the issue will just become more acute with the increasing numbers of litigants in person. ‘Courts are getting stuck,’ she says. ‘We had a temporary relocation case and the High Court wanted some expert evidence but nobody would pay for it so the child didn’t go.’ In April, the Court


of Appeal gave its long- awaited judgment in JG v The Lord Chancellor [2014] EWCA Civ 656, which found the Legal Services Commission (now the LAA) was wrong to refuse to pay


‘I use a spreadsheet and cover everything so the


total fee is way more than we have ever charged on a case.’ Another area where the courts are still feeling


their way is over proportionality. Webber describes a case where a baby died a few days after birth and his firm instructed four highly specialist experts. The claim was potentially worth around £40,000 because, five years on, the mother still couldn’t return to work. ‘The experts were all instructed pre-Jackson and


the defendants admitted liability,’ he says. ‘But I can see a judge now saying that is a mismatch and you can’t have all those experts. But I have a family whose lives have been devastated. The danger is that defendants will start thinking a claimant won’t get their case through on proportionality and so they will sit back and wait for it to fail.’ He believes it will take another one or two years


before the full impact becomes clear. ‘We will start getting cases where the judge says it is not pro- portionate to have this expert, and then you don’t prove your case and your client misses out on com- pensation.’ As the focus on proportionality increases, practi-


tioners and experts will have to work out priorities. Somek says her consultancy offers the option of a condensed report where the expert may bul- let-point some of the assessment. Its experts can also do a limited screening report to give clients a steer on whether there is a case and, very rarely, a ‘desk top’ report without seeing the client. But, she stresses, the expert will make the limited scope of the instruction absolutely clear and ‘put riders all over the report’. With legal aid now limited to birth-injured


babies, another pinch point is over the Legal Aid Agency’s rates for experts.


more than one-third of an expert’s fees because it believed the parents should have been required to pay the other two-thirds. The Law Society intervened.


‘The judgment is significant,’ says Mark Paulson, head of family and social justice, ‘because it means the LAA must now look at each case rather than adopt an absolute refusal to pay the fees in full.’ In April, the Children and


Families Act 2014 put into statute the 2013 practice direction that an expert cannot be instructed in a children case unless the court is satisfied it is ‘necessary’ – and not just ‘reasonably’ required – to resolve the proceedings ‘justly’. The move, intended


to reduce delays, was supported by the Law Society, whose templates for instructing experts in line with the practice direction have been downloaded


Webber understands issues around austerity but


says the fees have been set too low in some specialist fields. He wants the MoJ to give blanket approval for practitioners to top up fees so they can take cases on legal aid and get the experts they want. The alternative is to take the case on a conditional fee arrangement (CFA), but that raises issues over the recoverability of success fees and after-the- event insurance. ‘Do you risk going with a cheaper expert or opt


out?’ Webber asks. ‘I have never made a deduction in these cases on legal aid – the claimant gets every sin- gle penny. But it is a massive quandary because if you can’t get the experts you want on legal aid, you could be doing a better job for your client under a CFA.’ With all the additional pressures, the big concern


is that experts may decide ‘it isn’t worth the hassle’, he says, which will mean waiting lists get longer and delays increase. ‘In medical negligence, you have to get the best,’


Webber says. ‘That expert will be sitting in the wit- ness box on oath saying a colleague has committed professional negligence. Not only are they attack- ing someone else’s reputation, they are risking


comfortable with saying ‘no’ than before, which isn’t necessarily a bad thing —Francesca Kaye, Russell-Cooke


Judges are certainly much more


12,000 times. Another development, says


Thomson, is the ‘chilling’ new addition to case management orders which focuses on who is at fault if a public law children case goes over the 26- week deadline. ‘We were lead solicitors in a


recent case where the paediatric overview was late,’ she says. ‘I got a paralegal to do a chronology of all the times we had contacted the expert, what was sent when, and handed it up to the judge as I didn’t want to be on the “naughty step”.’ Last December, the MoJ reduced rates for experts in family cases by 20% but has said it will ‘monitor its impact’. ‘Part of the tension arises


between the court saying no delays and us having to rummage round to find an expert who will work for the legal aid rates,’ says Thomson. ‘What also happens is the LAA will pay expert fees on account then, a year later when we get the final bill assessed, change its mind and say that the expert shouldn’t have been paid. But we have already handed over the money so we have to take the hit.’


their own. It’s a real risk to their career and, while fees can’t be open-ended, it is unrealistic to expect someone to do that on the current legal aid rates.’ The president of the Family Division Sir James


Munby is so concerned about the cut in rates reduc- ing the number of experts willing to accept instruc- tions in ‘baby shaking’ and similar cases that he has raised it with the MoJ. With the spotlight so strongly on experts, there


was initial enthusiasm for the Australian concept of ‘hot tubbing’ – where all the experts go in the witness box together and are questioned by the judge. But that has ‘gone a bit tepid’, Solon says: ‘It’s still early days. But it appears judges and clients are keener on it than practitioners.’ None of Somek’s experts have been asked to jump


into a hot tub, but she thinks it could work: ‘It is a good idea to have some independent questioning rather than cross-examination, which is designed to undermine your evidence. But the success or otherwise will be down to the way the judge handles it, and they will need training and preparation time.’ Without that training it can go ‘horribly wrong’,


explains Kaye, who experienced a hot tub which was badly run and ended up a ‘mishmash of factual and opinion evidence with one of the experts who used to be an arbitrator flipping into a quasi-judicial role’. ‘The Mitchell flame has fanned us all into such


highly defensive behaviour,’ says Stevens, ‘and that isn’t fertile soil for a hot tub. But things will settle down, particularly with proportionality and budget- ing, and hot-tubbing could help keep costs down.’ With so much going on, what is clear is that


practitioners and experts will need to work on their relationships as the courts try to find the right balance between procedural compliance and justice.


Grania Langdon-Down is a freelance journalist


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