Slide 1B2: Civil: Experts
Experts
Statutory test for evidence – has to be necessary
Public Law Outline came into effect on 22.4.14
New guidance from LAA for expert remuneration and authorities
–
latest edition is September 2014 – essential reading
Appeal allowed in JvG (apportionment)
Experts’ standards introduced
When to instruct an expert
• Expert has to be “necessary to assist the Court to resolve the
proceedings justly” – Section 13 Children and Families Act 2014.
Both highlighted words are important.
• We have to identify expert by CMH and attend with details,
timescales and formal application (PD25)
• All parties are now meant to have a view on “necessary”
• Letter of instruction: use Law Society standard questions and
model terms of business (these are being updated currently). Why
re-invent the wheel?
• Keep background brief – remember you are on a fixed fee and
expert will read the papers you send them
• Keep a written record of all documents sent to the expert
• Why is expert needed
– Is it really to find evidence for LA? If so, ask them to
pay.
– Should the expert really have been instructed before proceedings.
Again can argue LA should pay
– If police involved, have they instructed an expert already?
– If parent accepts still using drugs/alcohol, why need a
psychiatrist?
Directions for Experts’ meeting
• Do you actually need one? – are the experts covering different
ground.
– Can the issues be covered by further questions or “hot tubbing”
at court.
– Is there time for one within 26 week timetable.
– Get a formal direction for one when experts directed.
– Get dates to avoid for such a meeting when instructing so as to
get a date fixed in diary well ahead of time. Be prepared for doing
this very early morning or late in evening.
– Does the Judge want the meeting recorded and transcribed (if so
get a direction specifically for that and for costs to be shared in
same way as the expert instruction): • Advantage is that Judge will
have absolutely accurate record of what was
said which can avoid need for schedule of agreement .
• Disadvantage is that some believe it may inhibit some experts and
also prevent them from speculating over wider issues which can give
ammunition for cross examination.
Chairing an experts’ meeting
• Get a list of questions from all parties, amalgamate into one
list and get that final list agreed.
• Circulate questions to experts in advance
• Ensure you have carefully read all reports and that all updating
papers have been circulated.
• If meeting being recorded and transcribed then use surnames even
if you know expert well.
• Try and get everyone to say their name before speaking at least
in early part of meeting.
• Try and get summarised points agreed during meeting.
Payment rates for experts
• For cases starting after 3.10.11 there have been prescribed rates
for experts as set out on list.
• Now three funding orders setting out rates.
• What expert can be paid will depend on the date of
certificate.
• Watch out for different parties having different certificate
dates as it can lead to expert being paid at two different rates if
they fall over the change over date for the order.
• Latest order setting rates is 2.12.13.
• Still some differences between experts in or out of London (but
fewer than before)
– NB issue of registered office
• Cancellation fee can be paid if less than 72 hours before
appointment or hearing
• Travel rate cannot exceed £40 p/h (or 2/3 of hourly rate for
work, if lower)
• Watch out for experts trying to set their own terms and
conditions. Read everything they send very carefully indeed
Independent Social Workers
• Rates for ISW not in Guidance but in Para 7.183 of the
Contract
• Current rate allowed for all ISWs wherever they are based is £33
per hour
if instructed on or after 1.4.14
– (prior to that £33 p/h in London; £30 p/h outside London)
• ISW can now only claim 2/3 of the rate for travel (i.e. £22
p/h).
• Can claim travel costs (mileage and fares) – ISWs need to keep
receipts.
• LAA has now provided a helpful guidance in Table 6 on page 11 of
the
guidance as to PAMS assessments
• Get a court direction if
– expert required to give evidence at Court.
– the evidence is by video link.
– the Court wants you to get answers to questions from the
experts.
Prior Authority
• PA mandatory if expert is on the prescribed list but wants a
higher hourly rate. You simply cannot get paid at that higher rate
without PA.
has to be either so complex that an expert with a high level of
seniority is required or such an unusual point that very few
experts available
almost certainly more than one quote will be expected by LAA.
LAA will not increase rate for ISW for social work (see below for
sexual abuse risk assessment)
• PA is not mandatory if
expert not listed: you do not have to get PA but wise to do so LAA
will have regard to nearest type of expert on the list
Will require more than one quote (guidance refers to 3)
the number of hours being sought is higher than Table 1 on page 6
of latest guidance
the item of costs is over £5K per funded client
Prior Authority - 2
• Number of hours
Applications can be submitted when proposed hours either unusual
in
nature or unusually large (when cost is over £5000 per funded
client or
where the hours are in excess of table 1 in the September
guidance)
Figures in table 1 are a benchmark and the LAA can pay in excess
of
them in the absence of PA. That said, the LAA do not expect the
totals
to be reached in every case.
If you are exceeding the suggested hours – do not have to get PA
but
wise to do so
LAA clear that if your expert is at the coded rate and within
the
suggested hours, application for PA not needed
Prior Authority - 3
• Number of hours
“Individuals” means those who are parties and those who are not.
One child is one
individual. Therefore, name them in the court order.
Cannot simply multiply the recommended number of hours by the
number of
individuals if more than 2 – the figure is set out in the
table.
The number of hours do not include:
travel time,
Attendance at experts’ meeting,
addendum reports (unless the addendum needed as the report is not
good)
If initial piece of work within the suggested hours, you do not
normally need PA for
the additional work.
If not using a local expert and travel time is high, it would help
to set the reason for
that out in court order
Court order saying hours are reasonable is not binding on LAA
Prior authority - 4
• What is the relevance of Tables 2 – 5 on pages 9 and 10 of LAA
guidance?
• These set out roughly what LAA has allowed on these assessments
over the years.
• You will note that in some cases these figures are higher than
those in Table1 setting out the hours above which you should seek
PA.
• Do not rely on the figures in Table 2- 5 to avoid getting
PA
• However, they can be used to argue your corner if you forgot to
get PA or expert overshot the PA but was within these benchmark
hours.
• They do give some idea as to what LAA will expect for an
addendum, answering Questions or experts meeting.
Risk Assessment
• “Risk assessment” only relates to sexual abuse risk assessment
(rate is £50.40 p/h)
• Court has to determine risk assessment needed, over and above
social work
assessment.
• Substantiated criminal allegation and finding of sexual abuse and
the report is required to address the risk following this
finding.
• LAA has entered into specific arrangements with a very few
experts and they have
a side letter about rates higher than the risk assessment rate –
application for PA
still required.
• Plenty of people still think there is a different rate for
assessing risk. There is not.
It only applies in this one specific area.
• Otherwise LAA will pay depending on the qualification of the
person undertaking
the assessment whatever it is called.
• Unless it is a sexual abuse risk assessment probably wise to
avoid calling it a risk
assessment to avoid confusion.
Drugs and Alcohol
• Not necessary to apply for PA as long as what you carry out is
exactly as the order
directs.
• Order must set out length of time of testing and if you want
month by month or
overview.
• Order must set out the drugs being tested for.
• Alcohol testing – need to set out if you want FAEE/ETG or liver
function testing.
• SCRAM X can be claimed if ordered by the court and not part of
therapy.
Various experts - 1
DNA
DNA test fee is per test and there is an additional report
fee
A collection fee of £50 is reasonable as far as LAA is
concerned
Advocacy Support Service Not covered by LAA
Sign language is covered but ensure the invoice makes it clear it
is signing interpreter
Translation
Get court order saying what should be translated. Always apply for
Prior Authority
In theory LAA say it is not necessary to apply if translation rate
is below £100 per 1000 words
(folio rate £7.20)
No other helpful guidance on who should pay for what to be
translated save that it refers to LA
getting documents it relies upon such as letters before proceedings
translated. It is not clear
whether this continues through the case or not and what happens to
documents relied upon by
parties other than LA.
Also LAA has a habit of arguing that you should not have had
particular documents translated but
should have summarised the documents and got the summary
translated.
Various experts - 2
Psychotherapists
Not listed – if using them be absolutely clear it is for assessment
not therapy
Psychologists
LAA may seek to apply the adult psychologist rates, even if contact
has been
observed (i.e. where the child has not been otherwise
assessed)
Be clear in court order if psychologist to assess the child and
that is why you need a
child psychologist
LAA being tough with these.
Current guidance gives only one example namely when appeal being
considered or
for evidence in other proceedings (or we would say, fact finding
leading to welfare
hearing)
Explain need for the transcript in the Claim
If directed to be paid at final hearing (and no appeal being
considered) you will need
to apply for prior authority and immediately make it clear to LA
and transcriber that
you will not pay without PA.
Various
• Joint and several liability
At present, each party sharing the instruction is jointly and
severally liable for the whole fee
Include a specific provision in the order that joint and several
liability will not apply and make clear to expert
• Use APP8A if seeking prior authority for multiple parties.
• Your costs limit will be increased but the other parties for whom
you are applying will not receive costs limit increase
automatically
• Not possible to lodge an APP8A on CCMS.
• Application can be sent before an order made in theory but
probably best to wait until order obtained
• No right of appeal against refusal although you can apply
again
Apportionment - 1
• Not clear in cases where everyone is legally aided if LAA
expects
all experts to be apportioned equally or not.
• If you are asked to pay the whole of a fee you may wish to ask
the
Court to determine this and you will need to set out the basis
of
the apportionment in the order
• LAA seem to take the view that if the expert is deemed to
be
necessary then everyone should share the cost even if that
actually
means LAA overall is paying more.
• Remember that you need to set out the parties sharing the costs
in
the final claim. Currently not necessary to have all legal
aid
certificates in the Claim but good practice to have them.
Apportionment - 2
– Difficulties arise in Rule 16 cases where one or both parties not
legally aided
– Case of JG was overturned on appeal - Court of Appeal determined
in this case LAA unlawful in not allowing the whole of the expert’s
fee on child’s legal aid
– Case needs to be read in full.
– Not being on legal aid cannot be sole reason to avoid share, just
as being on legal aid cannot justify taking the whole share
– In this case, the fact that Guardian recommended the assessment
and needed it, led the court to conclude the expert was a sole
instruction rather than a single joint expert
– Bottom line now is to always apply for Prior Authority if you are
directed to pay for the whole assessment or there is an unequal
share
Problems and invoices
• Expert late?
– Keep track of expert and report back to court if running
late.
– Will parent missing appointment cause problems? Do you
remind your client the day before and even on the day as
well?
– Check you have the correct contact details.
– Court can then consider whether to stop assessment or
require
live evidence instead
– If delay caused by instructing solicitor then costs may
follow
– Obligation on all of us to check and report
– If expert not responding at all consider seeking a witness
summons.
Expert attending court
• If need expert to give live evidence get a separate direction for
this with further provision for payment.
• If evidence is to be given by video or audio link also provide
for a separate direction for that as well with further funding
direction.
• Court is likely to want expert’s attendance avoided by further
questions being put in writing. If so, again ensure a separate
direction made.
• Be careful not to prejudice client’s chances by agreeing to
expert not being called to be cross-examined simply to please the
Judge. Experts have been know to change their minds or be less
definite when giving live evidence.
• Get dates to avoid from expert before IRH and ensure expert is
told of date ASAP.
• Do not agree to expert charging a daily or hay day rate for
attending court. They still have to charge at hourly rates (explain
they can claim for preparation for court.
• Ensure expert has all updating papers in good time.
Paying the expert
• Invoice must have
– your details;
– hourly rates;
– expert’s address; title and qualification of expert
– nothing on it that cannot be claimed (eg postage or hire of
office)
• If invoice not in correct form send it back for correction before
submitting for POA
• Even if Court assesses experts fees, LAA may still
challenge
• Keep copy of court order directing expert with invoice as you
will need both for claim
• Some solicitors will only pay half on submission of invoice with
balance being paid when final bill paid to avoid problems with LAA.
If you wish to do this make that clear in terms of business.
Experts Pre-Proceedings
• Can only be paid for by LA as no provision for disbursements
under
Legal Help
• Expert should be told of possibility of having to report to court
and
so should be considered to be bound by duties of expert at
Practice Direction 25B
• LA should always do a letter of instruction which should conform
to
principles in Practice Direction 25C
• LA must seek leave before filing such evidence once
proceedings
start. It cannot simply be filed with initial application.
• Also be aware of Practice Direction 15B re adults who may
not
have capacity to instruct
Expert standards
Introduced on 1.10.14 (they apply to all instructions dated on or
after this date)
Provisions set out in PD25B.
Expert must adhere to the standards
LAA will only pay for experts who adhere to the standards
Responsibility for compliance is with the expert
Practitioners must be able to show LAA they are satisfied the
expert meets the standards – CV and signed statement of truth will
be sufficient. Watch out for this being looked at much more closely
in the future and being used as a reason not to pay us.
If court directs an expert to be instructed who does not meet the
standards, consider application for PA
Actions by practitioners
Make sure you have the CV – attach to report
Expert to include the statement of truth in report