Operations of the Family Courts - Justice Committee Contents

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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Prepared 14 July 2011