Monday, 8 October 2007

Charging assessment/contact costs to the Legal Services Commission

Readers will be aware of the horse-trading that precedes the making of an order for assessment and the incurring of costs for experts’ reports. They will also be mindful of the phenomenon of a publicly-funded party’s certificate bearing the whole cost of a report or supervised contact sessions where the other side is privately-funded.
Though the general mechanism for this is for the court to specify that it is a proper disbursement on the funding certificate in question, readers should be aware that in the view of the LSC at least, that apportionment is subject to the scrutiny of the costs assessors of the Fund. (I have not read Lambeth v S, C, V & J and the LSC [2005] EWHC 776 Fam, which purports so to find) The consequence of that is that solicitors could find themselves having paid a bill of several thousands of pounds and never recovering it from the LSC. Worse still, they could recover it, have it spotted in an audit and lose their franchise as a consequence of having over-billed.

It is responsible in the writer’s view for counsel to remind themselves of the relevant guidance which appears at
This gives the Commission’s view on the effect and consequences of the Calderdale guidelines (Calderdale v S [2004] EWHC 2529). Two moot points which it is useful to have the Commission’s view on are a) that just because a party is interested in a particular part of an expert’s report, it does not follow that they should share in the costs of the whole report (see para 5.8.4 (where, maddeningly, the LSC state that ultimately the apportionment is a matter for the judge (i.e. conflicting with the overall thesis that the costs assessor is the ultimate authority)) and b) that apportionment should be divided between the parties including each child i.e. if there are four parties and one child, a five-way split; four parties and three children, a seven-way split.

On the discrete point of contact centre fees, readers should not miss the short guidance at paragraph 5.9 of the paper and in particular the three bullet-points which suggest to the writer’s mind that the LSC might have in mind a tightening up of this growth area of expenditure. This area does not, happily, bear the risk that the fees cannot be paid (as for those associated with 38(6) assessments, even if ordered) but there remains the risk that they will not.