UPDATE 20th September 2011: The guidance has now been revised. See our later post. The original post follows below.
As the countdown to 3rd October continues, concern is growing among practitioners not only about their own fees but about the position regarding experts. There are very real worries that experts will simply be unwilling to work for the new prescribed rates.
HHJ Altman, the Designated Family Judge for London, has issued guidance on the approach the Courts should take to these cases, particularly childcare matters. The guidance is available here.
However, the order suggested in paragraph 2b, which appears to say that the Court deems a fee above the prescribed rate appropriate and further deems that an application for prior authority would cause undue delay and therefore presumably can be dispensed with, does not fit with what the Contract says.
The contractual position – see new Unified Contract specification para 8.38 / Standard Contract specification para 6.62 – is that the prescribed rates can only be departed from IF the LSC have given prior authority and IF particular circumstances – which are not quite the same as those in the suggested Order – exist.
The Court can not disapply the contractual rules (which directly replicate what is in the Funding Order) and it would be a brave practitioner who instructed an expert at more than the prescribed rates on the basis of such an Order, in the hope that the LSC would therefore not rely on the Contract. The Judge does go on to say that the expert “may be vulnerable” to assessment down of their rates; whether it is the expert or the solicitor who in fact suffers any reduction will depend on the terms of the letter of instruction and if expecting experts to be subject to assessment, solicitors should be upfront with them about the risks – in this situation, they are considerable.
An Order in the terms suggested can authorise you to instruct the expert in the proceedings, but it can’t require the LSC to pay the bill.
This is the wording of the new Contract rule:
Where you instruct an expert to deliver services of a type set out in Part 14 of the Payment Annex we will not pay fees in excess of those set out in that Part unless:
(a) we consider it reasonable to increase such fixed fees or rates in exceptional circumstances; and
(b) we have granted prior authority to exceed such fixed fees or rates on such basis.
Subject to such limits where applicable, the amounts claimed for the provision of expert services must be justified on detailed assessment by the court or Assessment by us in the usual way. For the purpose of this paragraph 8.38, “exceptional circumstances” means that the expert’s evidence is key to the client’s case and either (i) the complexity of the material is such that an expert with a high level of seniority is required; or (ii) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.