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
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