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