Commentary
This case is of obvious importance to experts authorised by the Family Court to be instructed in public law proceedings but it has implications for all experts whose fees are to be paid by the Legal Aid Agency (LAA).
Although the judgment makes clear what criteria (exceptional circumstances) are to be met for the LAA to grant prior authority to instruct an expert where the fees or hours exceed those set out in the Remuneration Regulations or Guidance, the criteria, i.e. (a) complexity and (b) the specialised and unusual nature of the material will probably be familiar to many experts who have sought to justify their hourly rate and / or their estimated number of hours on the basis of the complexity and the specialised and unusual nature of the material.
Experts will also be familiar with concept of a market place and aware that consideration will be given to instructing the expert whose hourly rate and / or estimated number of hours is / are the lowest. Experts should therefore have regard to Table 1 in the amended 'Guidance on the Remuneration of Expert Witnesses in Family Cases' (https://assets.publishing.service.gov.uk/media/67ecea97632d0f88e8248b83/Guidance_on_Remuneration_of_Expert_Witnesses_v11__April_2025_.pdf ) which specified for different experts the number of hours above which prior authority should be applied for.
It is not surprising that in deciding which expert to instruct, the commissioner will be influenced by the expert’s breakdown of their estimate. Experts who have filed away detailed time sheets will have the advantage of being able explain why they estimate a particular number of hours for different stages in the process of report production. Details can be provided of mean and maximum numbers of hours.
As to complexity, the expert may have a view but the court will be likely to have its view on the basis of the extent to which courts in similar cases have required expert assistance and the nature of the expertise that has been required having regard to the complexity of the case for the court. The idea of ‘seniority’ is potentially significant. On the one hand it must already be the case that those commissioning reports decide that they need an expert “like (= as senior as) Dr X”. What may happen is that some experts, once they have been instructed at least once at an enhanced hourly rate, in seeking to negotiate fees, will state explicitly that they have been instructed as a ‘senior expert’ or on the basis of their seniority in the field or imply as much. It will be unfortunate if the concept of ‘senior expert’ is widely and explicitly adopted, if parties can submit that their expert’s evidence should be accepted in preference to another expert because their expert is a ‘senior expert’.
Although the term ‘full information’ is used in relation to whether the internal LAA procedures (including any review) have been followed, experts should have this in mind when negotiating instructions not just in LAA-funded cases but in any case.
Case
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