Apportioning Expert Fees in Family LA Cases

Sharing liability for fees in Legally Aided matters. 

There is some confusion regarding the correct way to apportion liabilities for Medical Experts, ISW and Toxicology fees in Legal Aided cases to avoid falling foul of the LAA when final payment/balancing is undertaken at the case conclusion. The LA guidance sets out the following normal practice. 

Parties should use a single expert jointly instructed where appropriate. If a legally aided client unreasonably refuses to do so, this is a Reg 42(j) of the CLA (P)  2012 reportable matter.

The existence of legal aid cannot affect the exercise of the discretion of the court (Section 30 LASPO 2012). It is inappropriate/unreasonable to transfer the responsibility for a disbursement to a legally aided party solely by reason of their legal aid status. Legal Aided clients should not bear costs and expenses unless this would be appropriate in the case of a private paying client. This is particularly relevant in private law cases where there is more likelihood of both Legal Aid and Non Legally Aided parties. 

Disbursements should generally be appropriately apportioned between the parties (whether publicly funded or not) where that is reasonable. Generally between the number of parties though there may be some cases where apportionment is not appropriate. It is a matter for the Court's ultimate discretion based on the case facts, nature and purpose of the evidence.

Note however Section 20(6) of the FLRA 1986, states where a direction is given under that section for use of a scientific test, the party on whose application the direction is given will bear the costs of the test. In those cases consideration will need to be given as to which party had made the application for the scientific test.

In JG (a child) v Legal Services Commission and KG, SG and the Law Society and the Secretary of State for Justice. A judicial review of the refusal of the LSC to meet the full costs of a report on the basis that it had not been apportioned between the parties (Private law case where the child/legally aided party had been ordered to pay it in full). The Court concluded that the normal order in that case would have been for the child to meet the costs of this report in full, irrespective of her legally aided status.

In obiter discussion the Court suggested there may be particular cases where the normal position may be departed from because of the inability of a party to contribute towards the cost, and that party’s financial eligibility for legal aid may be a relevant factor in this.

See Sections 1.6 , 1.7 and 1.8 for the full Guidance


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