Thursday 02 August 2012 by Jonathan Rayner
The Law Society is to challenge by judicial review a Legal Services Commission decision to meet just one-third of the costs of an expert witness report ordered by a county court on behalf of a child.
The LSC declined to pay the full costs of the report, arguing that the child, and his or her parents, had jointly instructed the expert witness and so should share the costs equally between them. The county court, in contrast, attached the full costs to the child's legal aid certificate because neither parent could afford to contribute.
The decision could have important implications from April next year, when most legal aid is to be withdrawn from private law proceedings, leaving more children as the only publicly funded parties to cases and more parents representing themselves.
The case began in 2009 when a district judge ordered a report from a child and adult psychotherapist 'in respect of the child in particular and the family dynamics in general'. The judge, who knew the parents' financial circumstances, ordered that the report's costs were to be funded by the child's legal aid, it being a 'reasonable and necessary disbursement to be incurred'.
The LSC responded that the order had been made without considering the provisions of section 22(4) of the Access to Justice Act, which prohibits courts from making orders that impose liability for a joint expert's fees only on those with legal aid if the other parties cannot afford to contribute towards the costs.
The Law Society's head of family and social justice Mark Paulson said: 'We decided to intervene on the basis that the case raised public interest issues of general application and importance. We accept the force of the LSC's argument, but relying upon it could mean denying the court access to evidence that it requires to reach a decision in the child's best interest.'
The solicitor acting for the child, Andrew Pearson, of Kent firm Pearsons, has also sought permission for a judicial review of the LSC decision on the grounds that it is irrational.