Important Guidance for Local Authorities on Expert Remuneration

Re K and Re S (Legal Aid) Experts' Fees [2025] EWFC 100 

The President of the Family Division, Sir Andrew McFarlane, has provided some much needed (and welcomed) clarity on the issue of experts’ fees in public law proceedings where the fees were to be covered in equal apportionments by each party but the rate to be charged by the expert exceeded that which the Legal Aid Agency (“the LAA”) was prepared to pay or authorise.  We set out below the key guidance for Local Authorities. 

It is a relatively common occurrence as a Local Authority practitioner in a complex public law case, that our clients are asked to cover a shortfall for a jointly instructed expert who’s fees exceed that which is ordinarily allowed by the LAA. Often, the scenario is as in the above proceedings; the Court directs that an expert’s fees are to be split equally between the parties including the Local Authority, but the LAA is only prepared to sanction payment by the legally aided parties at the prescribed rate (which is lower than that which the expert is charging) leaving a shortfall. The Local Authority is then asked to cover the shortfall, sometimes without exploring any reasonable alternative courses of action. 

In this judgment, the President set out the following: 

Where it is proposed to instruct an expert whose fees exceed the statutory rates, legally aided parties may apply to the LAA for 'prior authority' to incur the additional expense. In addition, Ms Emma Mockford, counsel for the LAA, told the court that in principle it is open to a party to seek to obtain authority for additional expense after the event. There is no right of appeal against a decision made by the LAA to refuse, or only partially allow, authority for additional expenditure above the standard rates. That that was the position in law was accepted by Sir Nicholas Wall P in Re DS (Children) [2012] 1 WLR 3098, [2012] EWHC 1442 (Fam).

The Remuneration Regulations are applied by the LAA in accordance with 'Guidance of the Remuneration of Expert Witnesses in Family Cases' ['the Remuneration Guidance'], which is non-statutory guidance, first issued by the Ministry of Justice in April 2013. It has been regularly reviewed and updated and, in September 2020, Annex 5 was added. Annex 5 identified five categories of expert where it was recognised that there was a shortage and higher rates were routinely allowed. In cases to which Annex 5 applies, there is no need for prior authority for fees that are within the higher rates set out in the annex.

Paragraph 2.3 of the Remuneration Guidance makes clear that when the LAA is deciding whether to approve rates for experts that are still higher than those in Annex 5 to the Remuneration Guidance "the LAA will consider, in addition to the [exceptional circumstances] criteria above, the total costs of the work sought, the speed at which the work must be completed, any identified shortage of experts and any other exceptional reason".

The President praised Barnet Council for its efforts in taking this point on behalf of all Local Authorities and goes on to explain that it sought endorsement of a set of ‘general principles’ at the final hearing. These principles were accepted by the expert’s working group and are as follows: 

‘i. Those seeking to instruct an expert should make all efforts to identify an expert
with the requisite experience and expertise who works within the prescribed rates
and the prescribed number of hours and can report within an acceptable timeframe. 

ii. If such an expert can be identified then that expert should be preferred by the
court absent any exceptional reason. 

iii. A local authority should not routinely be considered as a source of funds to
make good any shortfall in the instruction of an expert.

iv. A local authority should only be ordered to pay for the shortfall of an expert
where the court is satisfied: 

1. That there has been proper exploration of other experts who may be able to complete the work within the prescribed rates and for the prescribed
   number of hours.
2. That the application for prior authority that has been considered by the Legal Aid Agency has been argued fully and included all material relevant to the decision making of the Legal Aid Agency.
3. That the parties (including the Local Authority) have given proper consideration to the possibility of a claim for judicial review against the Legal Aid Agency.
4. That the reason given by the Legal Aid Agency for refusing to approve the application for prior authority was full and enabled the court and the parties to understand the reason for refusal.’

Further to this the LAA guidance on the Remuneration of Expert Witnesses in Family Cases was revised in April 2025 and can be found here - Expert witnesses in legal aid cases - GOV.UK

The key takeaways in respect of this issue are as follows: 

1. 2.4 - clarity that it was not the LAA's intention that local authorities should make up a shortfall in expert fees (other than in unusual circumstances). The Guidance made clear, at para.2.2 and para.2.3, what criteria (exceptional circumstances) had to be met for the LAA to grant prior authority to instruct an expert where the fees or hours exceeded those set out in the Civil Legal Aid (Remuneration) Regulations 2013 or Guidance.
2. 3.23 and Annex 6, a checklist to ensure all relevant information was submitted to the LAA.
3. para.3.22 and para.3.27, an explanation that the LAA operated a system whereby they could be asked informally to review the decision (see paras 23-25 of judgment).

‘The following directions shall apply to the instruction of [name of expert]: 

1. The lead for the instruction of the expert shall be [name].
2. The letter of instruction to the expert [as approved by the court today] /
   [to be agreed by the parties by 4.00pm on [date] and filed at court] must be sent the expert by 4.00pm on [date].
3. The issues in the proceedings to which the expert evidence relates are:
   (i)  [insert]
   (ii) …..
4. The Court is of the view that the facts of the case are exceptional, as
   defined in paragraph 2(2) of Schedule 5 of the Regulations,  and the experts instructed are essential to enable a fair and just conclusion of the proceedings
   because:
   (i) [insert Judge’s reasons].
   (ii) Complexity of material justifies appointment of a senior expert.
   (iii) Material of specialised and unusual nature.
   (iv) Confirmation of number of experts approached and reasons why
   that expert should be appointed.
5. The questions to be dealt with by the expert are [as set out in the draft
   letter of instruction] / [as follows: [insert]].
6. Permission is [not] given for the expert to see and assess the child[ren].
7. Permission is [not] given to call [name] to give oral evidence at the
   [final]/ [finding of fact] hearing].’

This insight is co-authored by Associate, Lois Williams. lois.williams@weightmans.com