Operation of the Family Courts - Justice Committee Contents

Supplementary evidence from the Legal Services Commission (FC 66)

Thank you for your letter dated 22 March 2011 and for the opportunity to comment on the evidence given by Dr Freedman to the Justice Committee In relation to expert witnesses in family proceedings on 1 March.

I will comment on the points made by Dr Freedman in the order that they are listed in your letter.

1.  Both the 2007 Unified Contract (Civil) and the 2010 Standard Civil Contract are clear that Providers may apply for prior authority in respect of costs which are either unusual in their nature or are unusually large. There has been no change in approach in this respect and prior authority applications continue to be considered in line with the contract specifications.

Applying for prior authority Is not mandatory. If permission to incur the expenditure is not sought or is refused, the costs may still be allowed on assessment of the claim for payment if the expenditure was reasonably incurred.

2.  The LSC has had internal guidance in place for a number of years as one of a number of tools available to assist caseworkers when considering applications to incur funding for experts, either by way of prior authority or in a claim for costs.

When considering such applications LSC assessment staff consider each request on its individual merits. Decisions are made on the specific facts of each case and on the information presented by the Provider requesting the expense. Caseworkers exercise discretion on the appropriate rate having considered the complexity of the case, level of expertise of the expert involved together with other local factors which may influence the applicable charging rate.

LSC caseworkers seek to establish that any report commissioned is in line with the market rate, ensuring that value for money Is maintained. However we are aware that in certain occasions there will be some experts whose rates will be significantly above the market rate and there is good reason for their instruction. In these situations the onus is on the Provider to demonstrate why this expert will be more beneficial than a cheaper alternative.

The internal guidance benchmark rates are published in the Ministry of Justice consultation 'Proposals for the Reform of Legal Aid in England and Wales', which proposes to codify the rates as maximums (subject to a 10% reduction).

3.  During the course of a case a court may direct that a particular type of expert should be instructed. However, in the vast majority of cases the court will make no direction as to the allowable cost of that expert. In such cases it is for the Provider to identify an appropriate individual expert from their register of approved suppliers (as required by the LSC Specialist Quality Mark and the Lexcel quality standard). It will then fall on the LSC, as the paying authority, to authorise an appropriate rate and total cost for that expert, following receipt of either an application for prior authority or a claim for payment from the Provider.

Distinct from these circumstances are those cases in which the court is responsible for conducting a detailed assessment of a Provider's payment claim to assess whether the amounts claimed (including disbursements) are reasonable. In such cases, whilst the LSC is the final arbitrator on what is paid and must be mindful that costs limitations must be adhered to, it isn't our practice to reassess claims that have previously been assessed by the court. I am not aware of any programme in which experts have been asked to return payments for work done in previous years. However, I would be happy to investigate if further details on specific instances could be provided.

March 2011

previous page contents next page

© Parliamentary copyright 2011
Prepared 14 July 2011