bailii.org/ew/cases/EWCA/Civ/2014/656.html Useful case re paying experts in child law cases: apportionment of costs • An expert does not become a single joint expert just because the parties put questions to the expert. Parties may communicate with and take the benefit of, an expert instructed by another party without that expert becoming a single joint expert; • There is no normal rule of equal apportionment; it depends on the circumstances of the case; • The court has discretion and should provide reasons; • Relevant factors might include: o The adequacy of the work done by the local authority itself; o Whether the report is directed at the threshold or is designed to assist in welfare decisions; whether the parties have put forward their own preferred expert; o Who made the application; o The need for each party to have confidence in the integrity of the forensic process. Black LJ in JG and THE LORD CHANCELLOR & ORS (Neutral Citation Number: [2014] EWCA Civ 656): Paragraph 55: Rule 25.12(6) provides: Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the experts fees and expenses. The reference to relevant parties leads back to Rule 25.11(2) where it can be seen that relevant parties are the parties who wish to put expert evidence before the court which is going to be given by a single joint expert. Rule 25.12(4) provides that the court may give directions about, amongst other things, the payment of the experts fees and expenses. It may also, before the expert is instructed, limit the amount that can be paid to him by way of fees and expenses (Rule 25.12(5)). Paragraph 76 What in my view the power in Rule 25.11(1) does not extend to is forcing a party who was not seeking to instruct an expert himself to join in the instruction of an expert that another party has invited the court to approve. 78: It appears that neither parent had raised the possibility of an expert prior to the involvement of the guardian although the litigation had been on foot for a significant period of time. The idea seems to have come from the guardian and the childs solicitors identified the proposed expert and prepared draft instructions which were served on the parents with the experts CV. … 79: On these facts, I would have thought the correct starting point would be that the experts report was genuinely sought by the child alone, with the result that the case would fall within the category of case in which the Lord Chancellor accepted that it was legitimate for the legally aided party to bear the full costs. True, the court would not have had an application for permission before it had it not been for the joinder of the child and the consequent availability of public funding, but that is not the same as saying that the principles on which the courts discretion is normally exercised have been affected by the existence of the funding in contravention of section 22(4). … 79: Does the involvement of the other parties in the instruction of the expert make a material difference? In particular, can it turn the expert from the childs expert into a single joint expert? 81: The answer to this will be fact sensitive. One can imagine a situation in which one party proposes an expert and the other party or parties respond with proposals to instruct their own expert(s). This may well put matters firmly into the territory of Rule 25.11. 82. The expert would only be a single joint expert for the purposes of the rules if the process made him a person who provides expert evidence for use in proceedings on behalf of two or more of the parties (Rule 25.2(1) FPR 2010). The rules explicitly acknowledge that parties may communicate with and, I would emphasise, even take the benefit of, an expert instructed by another party without that expert becoming a single joint expert. Take Rule 25.10(1)(a) from which it is clear that the mere fact of putting questions to an expert instructed by another party is not sufficient to convert the expert into a single joint expert. Similarly, making use of another partys experts report as evidence at a hearing does not convert the expert into a single joint expert either, see Rule 25.15. 86 First, I want to look at what the position is where there is no problem over resources…I do not accept that there is a normal rule of equal apportionment of the costs; in my view, like so many of the issues that arise in this appeal, it all depends on the particular circumstances of the case. 87. In Calderdale MBC v S and the LSC [2005] 1 FLR 751 all the parties were funded through the LSC except the local authority. … On appeal, Bodey J substituted an order apportioning the costs equally between the four parties, so that each paid 25%. He made clear that all the circumstances of the case were relevant, including the adequacy of the work done by the local authority itself, whether the report is directed at the threshold or is designed to assist in welfare decisions, and the need for each party to have confidence in the integrity of the forensic process. 88. Bodey Js approach was endorsed by Sir Nicholas Wall P in A Local Authority v DS [2012] EWHC 1442. 89. In London Borough of Lambeth v S [2005] 2 FLR 1171, Ryder J referred to what he described as the non-exhaustive considerations set out in the Calderdale case: … normal practice in children proceedings is to be followed. That would be to make no order as to costs absent exceptional circumstances. On a joint instruction that would involve an equal apportionment of the overall cost between the parties, funded or otherwise. That is precisely what the Calderdale criteria provide for, just as they provide for the circumstance where the local authority should take a greater or full share of the costs because of the circumstances of the case. What I draw from the three authorities to which I have just made reference is that the court has a discretion as to what order is made as to the costs of instructing experts in family proceedings and that that discretion must be exercised bearing in mind all the circumstances of the particular case. Notwithstanding Ryder Js reference to the normal practice in children proceedings of there being no order as to costs except in exceptional circumstances, I do not think that the intention was to elevate the approach into a presumption or normal rule that the costs of experts should be apportioned equally between the parties. … Ryder J was right, in my view, to emphasise (also in §51) what Bodey J said at §54 of the Calderdale case, namely that a blanket policy about the costs of joint reports cannot be stated and that ultimately is a matter for the discretion of the Court.
Posted on: Tue, 08 Jul 2014 14:55:26 +0000
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