Prior approval required for experts and limitations on their costs

We also have to consider that it is reasonable for public funds to meet the cost of using the expert and whether the costs of an expert report can be shared with another party or parties.  We must be satisfied that it is reasonable and appropriate in all the circumstances of the case to approve that expenditure.

In your approval application for an expert you must address:

• if you are seeking approval only for a report from the expert
• if the report will be based on an examination of papers and records or whether it involves an examination of your client or other party to the proceedings including the child. If an examination of a child or other party to the proceedings is sought you must properly address the issue of consent
• if you are prepared to share the instruction, findings and costs of the report with another party or parties and if not, why you do not consider this appropriate/reasonable
• if you are seeking approval to instruct your own expert rather than a joint single expert why this is both reasonable and necessary
• if the court has determined that one single expert should be instructed on behalf of all parties, what share you are seeking of the total costs
• if you want authority to consult with the expert or for the expert to attend court to give evidence.

Where we have given you approval for a report by an expert and you subsequently need to cite that expert to give evidence in the court proceedings, you do not have to apply for further approval for these experts’ associated costs (unless the costs are likely to exceed £3,000, in which case you would require to submit an approval application for unusually large expenditure).

Where another party in the proceedings has been granted approval for a report from an expert on the condition that it is jointly instructed with your client but where the costs of the report have been approved under the other party’s grant of legal aid, if you then wish to cite this expert to give evidence in the court proceedings, you do not have to apply for further approval for this expert’s associated costs (again, assuming the costs are not likely to exceed £3,000) but you must make it clear in your account that approval for this joint report was granted under a different grant of legal aid and provide that party’s reference number if known.

When applying for approval of an expert, you should:

• provide a full breakdown of the likely costs
• clearly state what fees are proposed, including fees for reports, attendance at court and travel time, with a statement of the basis of the charge, for example, an hourly or daily rate
• specify individual outlays likely to be incurred
• include a note, for any travel costs, of the form of travel to be. We only pay half of any hourly rate for travel.
• specify any subsistence and overnight accommodation charges
• provide a comparative quotation if the cost of the proposed expert report is over £2,000 or provide an explanation why no alternative quotation is available.

You should satisfy yourself that the expert would be prepared to attend court if necessary.

Any approval granted by us may include a condition that costs may not exceed a specified amount or that specified work may not be carried out.

Where a report has been jointly instructed by parties including the Reporter and/or non-legally assisted parties, then one ‘lead’ assisted party should , where possible, submit one approval application for the entire cost of the expert, report or fees (less any share being paid by the Reporter and/or non legally assisted party or parties if appropriate) to avoid the administrative burden of all legally assisted parties applying for approval for their individual pro-rata share.

Such an application must contain the following information:

• what pro-rata share each party will be responsible for , including the Reporter and/or other non-legally assisted party if appropriate
• the names and legal aid reference numbers ( if known) of the other parties.

It should be noted that for all cases where an expert is jointly instructed, each party will be responsible for their pro-rata share of the final amount due to be paid to the expert (even if this exceeds the actual figure approved by us).

When giving approval to employ an expert witness, we will impose a limit on their cost.  You must make it clear to the expert:

• what your set limit is that we have given you (excluding VAT)
• that if the work is going to cost more, you will have to ask us for an increased limit to allow the work to continue and this needs to be approved by us before the expert can carry out the additional work.

We will pay only up to the amount that we approve and you may be personally liable to the expert for any extra costs they incur over and above that amount we approve.

Where an expert has been told of the limit, but it has been unavoidably exceeded, we may still meet the expert’s reasonable costs if this is appropriate. In this case, you will require to apply to us for retrospective approval.

When we grant approval subject to a ceiling of expenditure, this does not allow the expert witness to automatically claim a fee at that ceiling. In particular, we expect to see in the fee note submitted:

• details of the time engaged on each of the main aspects of the work (such as perusing papers, examinations, consultations, writing reports, travel, waiting, attending court)
• a note of the hourly or other rate(s) charged by the expert and by anyone helping them for parts of the work (note that we can only pay an expert half their hourly rate for travel time incurred)
• any outlays incurred individually specified and vouched
• for any travel costs, a note of the form of travel used
• details of any subsistence and overnight accommodation charges.

Any experts or professionals instructed should be informed that any travel incurred will only be reimbursed at half their hourly rate.

General rules for expenses:

• when travelling, the most economical form of transport should be used. All train fares will be paid at standard class.
• where an overnight stay cannot be avoided we expect accommodation and subsistence costs (including dinner and breakfast), wherever possible, to be within the limit of £125.14 per night. This is the prescribed limit that applies to counsel. All costs require to be justified even where they are within this rate.
• we will not pay for any alcohol, newspapers, telephone calls or sundries which should be met by the expert themselves
• receipts will be required for all expenses incurred
• we do not pay for secretarial fees, or pay postage or courier fees. Experts often seek to charge for a variety of administrative charges including telephone calls and e-mails making various arrangements. These are not chargeable.

It would be helpful if the experts were reminded that, to assess their claim properly and to prevent delays, a full breakdown of the work undertaken should be provided for the final accounting stage.

All receipts and vouching should be produced with the claims made. If the claim includes meetings and/or travel, the start and finish times should be included against each item.