What effect would the removal of prior authority
have on your publicly funded work?
There are signs that the Legal Services Commission (LSC) may be considering whether to end the system of prior authority that currently operates in publicly funded cases. The advantage of the prior authority scheme for expert witnesses is that the already poorly funded defence lawyer in a criminal case has the confidence to instruct his expert witness secure in the knowledge that the expert’s fee will not be challenged and so add to the lawyer’s money troubles. A reminder of how prior authority works is set out below.
Let us take your views to the LSC
The UK Register of Expert Witnesses will be represented at a meeting with the LSC at the end of September. If you have any observations about the effect that removal of prior authority would have on your work in the publicly funded justice system, please do let me have them. Send email now...
How prior authority works
Once a legal aid funding certificate has been granted to their clients, solicitors can seek prior authority for disbursements. Amongst others, these may include:
- the payment for an expert report and/or
- the tendering of expert evidence in court.
Before giving prior authority, the LSC area office will need some fairly detailed information about the fees the expert witness will be charging, and it will then set a ceiling figure. Providing:
- the need for the report or evidence still exists when the solicitor gives the expert witness the go ahead to prepare it, and
- the LSC’s ceiling figure is not exceeded
the solicitor then has a guarantee of full reimbursement for the charges the expert witness eventually makes.1
If the expert witness should find, once work has started, that for reasons not apparent earlier the job is either going to take appreciably longer to complete or requires more in the way of disbursements, the instructing solicitor may apply once again to the area office for an authority with a higher ceiling figure.
See Regs 17 and 19 of the Criminal Defence Service (General) Regulations 2001. In the civil arena, equivalent provisions are contained in the LSC Standard Contract 2010 which binds all solicitors working for the LSC.