JG v The Lord Chancellor & Ors

In private-law children proceedings, the fact that other parties contribute to or may benefit from an expert report does not by itself make the expert a single joint expert. The court must examine the substance of the instruction and identify who sought the report and for whose purposes. Where the report was sought by the child, through the guardian, to assist the court on welfare issues, the child's public funding may meet its full cost. Section 22(4) of the Access to Justice Act 1999 is not infringed where funding did not affect the court's ordinary discretion. The broader question of unequal funding for a single joint expert is fact-sensitive and was expressly treated as obiter.

The appellant child had been joined as a party to private-law proceedings under section 8 of the Children Act 1989. Through her guardian, she obtained permission for a psychotherapist's report concerning family relationships and welfare issues. The Legal Services Commission refused to fund the whole cost, considering that the report benefited all parties and that the parents should contribute.

Ryder J dismissed the child's judicial review claim, holding that the funding arrangement contravened section 22(4) of the Access to Justice Act 1999. He also rejected a legitimate-expectation argument and addressed a general question concerning the funding of necessary expert evidence where other parties could not pay. The appeal concerned the legality of the specific refusal and, more generally, the proper approach to expert funding in private children proceedings.

Appeal allowed unanimously. Black LJ delivered the judgment, with Richards and Fulford LJJ agreeing. The court set aside Ryder J's dismissal of the judicial review claim and substituted a declaration that the Legal Services Commission's decision not to meet the cost of the expert's report was unlawful.

1. The decisive issue was the substance of the transaction that led to the report. The evidence showed that the idea of the assessment came from the child's guardian, that the guardian sought professional assistance for the child's benefit, and that the parents had not themselves sought an expert. The April 2009 order was properly understood as completing that child-focused instruction.
2. An expert does not necessarily become a single joint expert because other parties contribute to the instructions, receive the report or may benefit from it. The question is fact-sensitive. The rules recognise that parties may question or use another party's expert without thereby becoming jointly instructing parties.
3. On the facts, the report was substantively sought by the child to assist the court in determining her welfare. The fact that the report might also benefit the parents did not make the child's funding unlawful. The order was not affected by the child's legally aided status in the sense prohibited by section 22(4) of the Access to Justice Act 1999.
4. The court's wider observations were expressly obiter. There is no universal rule that the costs of a single joint expert must be shared equally. The appropriate order depends on the particular facts, including the ordinary order absent resource constraints, the parties' means, Convention rights, the nature of the welfare decision and the need to avoid delay. An additional requirement of exceptionality is not justified.

The court did not determine the wider legitimate-expectation issue. It advised judges to give concise reasons for expert-funding decisions, to spell out orders precisely, and solicitors to seek prior authority for expert instructions.

• Court of Appeal (Civil Division) — appeal allowed; Ryder J's order was set aside and a declaration substituted that the refusal to fund the expert's report was unlawful.
• High Court, Queen's Bench Division — Ryder J dismissed the judicial review claim. His judgment is reported at [2013] 2 FLR 1174.