You may well have heard that the new guidance on the instruction of experts came into force today. If it is actually enforced, it will significantly reduce the number of experts and at the same time significantly increase the amount of preparatory work prior to requesting the involvement of an expert.
The Ministry of Justice published a jolly and triumphal press release about it, here
“New rules come into force today which will mean judges can streamline proceedings in family courts by reducing the number of expert witnesses who have to give evidence.
Up to now, evidence from experts including psychologists, doctors and others would be heard if it was “reasonably required”. Now the judge will apply a tougher test and only allow the evidence if it is “necessary”.
The President of the Family Division, Sir James Munby, said:
“There is no question of families being denied the chance to call evidence they need to support their case or being denied a fair hearing. But the new test gives judges more control over expert evidence in family proceedings. The rule change gives family judges the means to make robust case management decisions to make sure the expert evidence is focused and relevant.”
“ This change underlines the key role of the court in determining what expert evidence it requires to help it reach the decisions in a case.
“This change is a vital component of the active judicial case management that will be needed to prepare the ground for the new Single Family Court, due to come into being in April 2014.”
The rules substitute a new Part 25 (Experts and Assessors) into the Family Procedure Rules and will apply to existing proceedings as well as those started after today’s date.
In addition, controlling the use of expert evidence has been added to Rule 1.4 of the Family Procedure Rules governing active case management.
The key changes to the existing Part 25 include:
- a change to the test for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary’.
- a list of factors to which the court is to have regard in reaching a decision whether to give permission, including the impact on the timetable and conduct of the proceedings and the cost of the expert evidence. Additional factors are specified in proceedings involving children. These include what other expert evidence is available, including any obtained before the start of proceedings, and whether the evidence could be obtained from another source, such as one of the parties or professionals already involved in the case;
- in proceedings involving children, an application for permission to instruct an expert should state the questions which the expert is required to answer and, where permission is granted, the court will give directions specifying the questions that are to be put to the expert.”
I was interested in the very last bit – the Court approving the questions and setting them out in the order approving the instruction, because I wasn’t entirely sure that this claim was actually delivered in the changes, so have pressed a little further, and found that it IS, if the practice direction is followed (yeah, right) :-
Well, it does seem, that if the Practice Direction is followed (ha!) then rather than coming to Court with a name of an expert and some timescales, there should be a proper application, accompanied by a draft order [my underlining]
3.11 FPR 25.7(2)(b) provides that a draft of the order giving the court’s permission as mentioned in FPR 25.4 is to be attached to the application for the court’s permission. That draft order must set out the following matters—
a) the issues in the proceedings to which the expert evidence is to relate and which the court is to identify; b) the questions relating to the issues in the case which the expert is to answer and which the court is to approve ensuring that they
(i) are within the ambit of the expert’s area of expertise;
(ii) do not contain unnecessary or irrelevant detail;
(iii) are kept to a manageable number and are clear, focused and direct; c) the party who is responsible for drafting the letter of instruction and providing
the documents to the expert; d) the timetable within which the report is to be prepared, filed and served; e) the disclosure of the report to the parties and to any other expert; f) the organisation of, preparation for and conduct of any experts’ discussion
(see Practice Direction 25E – Discussions between Experts in Family Proceedings); g) the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion; h) making available to the court at an early opportunity the expert reports in electronic form;
i) the attendance of the expert at court to give oral evidence (alternatively, the expert giving his or her evidence in writing or remotely by video link), whether at or for the Final Hearing or another hearing; unless agreement about the opinions given by the expert is reached at or before the Issues Resolution Hearing (“IRH”) or, if no IRH is to be held, by a date specified by the court prior to the hearing at which the expert is to give oral evidence
And then also, it appear that the party seeking the instruction should send the draft order and questions in to the Court in advance of the hearing
Asking the court to settle the letter of instruction to a single joint expert
6.1 Where possible, the written request for the court to consider the letter of instruction referred to in rule 25.12(2) should be set out in an e-mail to the court and copied by e-mail to the other instructing parties. The request should be sent to the relevant court or (by prior arrangement only) directly to the judge dealing with the proceedings. In the magistrates’ court, the request should be sent to the relevant court or (by prior arrangement only) to any district judge (magistrates’ courts ) hearing the proceedings (and copied to the legal adviser) or to the legal adviser. The court will settle the letter of instruction, usually without a hearing to avoid delay; and will send (where practicable, by e-mail) the settled letter to the lead solicitor for transmission forthwith to the expert, and copy it to the other instructing parties for information.
Well, my first cynical take on this is that this simply won’t happen. There’s quite a lot of this that was already in the Practice Direction on Experts which everyone cheerfully ignored. It is that traditional Practice Direction stance of rather than making two or three solid suggestions that everyone can follow, that you introduce a blizzard of utterly unworkable schemes all at once to the point where everyone takes one look at it and concludes that it is best to just pretend the whole thing doesn’t exist.
If it IS going to happen, and that the Judge refuses any expert assessment where the request is not Practice Direction compliant [and that really depends on whether they are being sternly told behind the scenes that this is what they must do], then we are going to end up with an awful lot of adjourned CMCs, where we have to come back to Court and do it all again, only this time with reams of paperwork.
[If a party seeks an expert assessment, and doesn’t come with all of the paperwork and the CMC has to be adjourned, are they at risk of costs orders? Yet another reason for ducking being the lead on any assessment or proposed assessment]
If it IS going to happen, two major practice points arise. Firstly, the advocates meeting before the CMC would need to be happening much earlier than the two working days prior that it currently is (which in reality will just mean a later CMC). Secondly, whichever of the two parents lawyers decides to be the lead on the instruction of an expert, is going to have a huge amount of work in organising that instruction, far far more than at present, and their profitability (ha!) in the case probably immediately goes down the Swanee river.
So, if you are only looking for one expert, expect to see some quarrels at the advocates meeting about whether mother or father’s team should be the lead; as neither of them will really want to take on this burden.
[I also expect that counsel attending these advocates meetings will regularly find in their brief “under no circumstances agree to us being the lead on the expert” – we squabble about ‘who has to be the lead’ now, when very little is involved, but this is now a massive volume of work]
This may, cynically, be the way that the Government intend to reduce the number of experts – it hasn’t been possible to get the Courts to refuse assessments (being that they tend to follow the line of the Court of Appeal, which has been very pro-second-opinion), so they will just make it very very unattractive for those representing parents to actually make the applications.
So, watch this space for the first appeal from a Court who refuse an expert assessment because this Practice Direction has not been complied with.