Supplementary evidence from Dr Judith
Freedman, Consortium of Expert Witnesses to the Family Courts
(FC 65)
On behalf of the Consortium of Expert Witnesses to
the Family Courts, I submit the following:
1. Our position is not exceptional
We are only looking for reasonable and timely payment
for the work we do.
2. Prior Authority
Solicitors now frequently tell us in phone conversations
that the LSC refuses to grant prior authority for public
law cases.
A solicitor wrote to one of our members in July 2010,
"No prior authority was obtained for your report as the LSC
do not give prior authority for expert assessments as they ask
parties to justify the fees/work on assessment. This is the case
even where the court has directed that an assessment take place
and has approved the choice of expert."
Another solicitor wrote to me in March 2011, "I
have now heard from the Legal Services Commission. They have confirmed
that for public law cases they do not grant nor is there a need
for prior authorities where the court have ordered a report."
As I said in my evidence to the Justice Committee,
the LSC's refusal to grant prior authority means that clinicians
undertake work for the Courts without any assurance that their
fees will be paid. We do not know of any other professionals who
are denied the right to negotiate a contract before undertaking
work and are told that the fee will be decided after the work
is completed. In the solicitor's email to me, she went on to say
that the LSC wanted to cut the expert's fees by nearly 50%, after
he completed the work.
Ms Downs, the Chief Executive of the LSC, wrote to
you that Providers are able to apply for prior authority. However,
if solicitors, who are the "middle-men" in the financial
dealings between Expert Witnesses and the LSC, are finding that
prior authority cannot be obtained, then the LSC have a responsibility
to either change what they have said to the solicitors who instruct
us or change what they are telling the Justice Committee.
It is also the responsibility of the LSC to grant
prior authority in a timely fashion, so that waiting for prior
authority does not cause delay. We know of private law cases (for
which the LSC does grant and indeed requires prior authority)
where obtaining prior authority has taken four months.
In correspondence between a solicitor and an expert,
the solicitor wrote in January 2011, "My firm has made application
for prior authority but expects the application to take three
or four weeks. Other firms have been told that prior authority
will take up to eight weeks.
The solicitor wrote again on in February 2011, saying,
"I applied for prior authority and the LSC refused on the
ground NOT that they wouldn't allow the disbursement, but that
where the court had directed it, it was LSC policy not to grant
prior authority."
As things are, it is now often the case that clinicians
who say that they will only begin work with prior authority are
not instructed.
3. The LSC's Benchmark rates
We first heard about the existence of the "benchmark
rates" at a Working Group meeting at the Ministry of Justice
in September of 2010. I asked Mr Glyn Hardy, the LSC representative,
what the rates are, but he said that he could not say. I then
filed a Freedom of Information Act request, but the LSC refused
to respond to that, as well.
The benchmark rates were then published in the Ministry
of Justice's Green Paper. They were supposedly based on a data
collection done by the LSC, but we knew from the Working Group
that the data was severely flawed. All the expert witnesses on
the Working Group and others have raised concerns about the veracity
of this "data".
Since then, I have submitted a further Freedom of
Information Act request to see the data that the LSC used. I sent
the request last month, and the LSC acknowledged it the same day,
saying that they would respond no later than the middle of April,
but I have not heard from them yet.
Ms Downs says in her letter to you that the Green
Paper, "proposes to codify the rates as maximums (subject
to a 10% reduction)." But it is not true that these rates
are just proposals; in fact, the LSC is now implementing them,
before the Government decides on the Green Paper consultation.
We have many examples of solicitors saying that the
LSC is now paying only in accordance with the benchmark rates.
Indeed, we have received from solicitors copies of the benchmark
rate table, which they have received from the LSC. This is not
surprising, since when one of our members sent a Freedom of Information
Act recently to the LSC, asking for the guidelines rates they
are currently using, he was referred to the table in the Green
Paper, and yet Ms Downs writes that this is still at the proposal
stage.
4. London Rates
The current situation is particularly critical for
London-based cases, where the LSC has followed the proposals in
the Green Paper for even lower rates than for cases outside London.
Since the cost of maintaining practices (administrative staff
and office space) in London is significantly higher than outside
London, many expert witnesses find that the rates the LSC are
paying do not cover their overhead costs.
The Government said in the Green Paper that they
proposed offering lower rates within London because they believe
that there is more competition. They provided no data to indicate
that this was correct. Indeed, even offering the same rates nationwide
would mean lower rates for London, since the costs of working
in London are higher than elsewhere. The Green Paper does not
seek to penalise any other professionals, such as barristers or
solicitors, for working in London rather than elsewhere.
5. The LSC's assessment of costs
Our members find that the LSC is inconsistent in
their assessment of costs and do not give guidelines that are
transparent or even understandable. In most family cases, the
bills are shared between the parties. There are cases where some
of the solicitors receive full payment, whilst others do not.
The only explanation the LSC makes for their reductions
is the word "excessive", which they use frequently.
In some instances, they only send back a hand-marked copy of our
invoice, showing cuts, without explanation. This means that the
LSC has decided that their case workers—not the clinicians
doing the work—determine the time required to prepare an
expert report.
Although expert witnesses are permitted to appeal
LSC decisions, we have to write detailed responses, requiring
much time.
We have even had cases in the last year where the
LSC refused to pay the clinician's VAT. The solicitor wrote to
the clinician, "LSC has made it clear that they no longer
grant VAT". This again required costly correspondence to
the LSC, pointing out that expert witnesses have to charge VAT
by law.
6. Travel costs
Our members report that the LSC is cutting the cost
for travel rates, using many different figures. The decision to
lower the rates for travel time was made in a previous consultation,
before our Consortium formed, and we believe that it requires
urgent reconsideration. Expert witnesses travel widely to reach
family members who live at a distance from urban centres or who
are unable to travel. These families will be disadvantaged if
they cannot be seen locally. Also, children's lives will be further
disrupted if they have to travel long distances, which usually
require them missing time at school. Severely lowered travel rates
do not take into consideration that clinicians have offices to
run, and the cost of these offices continue, whether the fee-earner
is travelling or interviewing.
7. Clawback
Ms Downs says that she "is not aware of any
programme in which experts have been asked to return payments
for work done in previous years." This is patently untrue.
In my own practice, as well as that of others, clawback demands
are increasingly frequent.
For example, in February 2011, a solicitor wrote
to one of our members, asking him to return nearly 50% of four
invoices, rendered in 2006 and 2007, and already paid. The solicitor
said that the LSC had assessed these bills as "excessive"
and she requested a refund within five days.
April 2011
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