The President of the Family Division, Sir James Munby, recently handed down his third View from the President’s Chambers, focusing on the reform of expert evidence. As he says:
‘My call to everyone in the family justice system is simple and clear. We can and must reduce the excessive length of far too many care cases. In order to achieve this we must get a grip on our excessive and in many instances unnecessary use of experts.’
He adds: ‘The problem does not lie with the experts themselves. It lies in the use we make of them.’
This is not of course the first time this year that the issue of experts has been the subject of change and scrutiny, the President touched on this area in his previous View from the President’s Chambers in April 2013 and amendments were made to the Family Procedure Rules 2010, Parts 1 and 25 and the associated Practice Directions in January 2013.
It is easy to feel swamped under the increasing mountain of guidance, changes to legislation, and case law, so what purpose does the President’s View have? Well, it’s a heads up, and indication from the top that unlike, for example, MIAMs, a hard line is going to be taken on other reforms to the family justice system.
The President provides a checklist of what is going to happen:
- a reduction in the use of experts
- a more focused approach in the cases where experts are still needed; and
- a reduction in the length of expert reports
The necessity of expert evidence has recently been under the scrutiny of the Court of Appeal in Re H-L (a child) (care proceedings: ‘necessary’ expert evidence)  EWCA Civ 655,  All ER (D) 112 (Jun). In a recent LexisPSL Family News Analysis Barbara Mills of 4 Paper Buildings suggested the following key points for family lawyers to take account of following Re H-L:
- That despite the President’s cautionary note to courts and practitioners to remember the distinction between ‘treating clinicians’ and experts (see further, Oldham Metropolitan Borough Council v GW  EWHC 136 (Fam),  1 FCR 331), if the court accepts there is a gap in the information provided by treating clinicians who have given preliminary views then those clinicians should be asked to provide answers to any further questions without using ‘outside’ experts.
- In such circumstances it will be difficult if not impossible to obtain an ‘outside’ expert except in very limited cases. To succeed, it may be wise for practitioners seeking an expert to undertake a thorough review of the evidence and material already in the case to highlight where the so-called gap in the court’s information may be and the relevance and importance of bridging that gap.
- If a court is persuaded that instructing an outside expert is necessary, it may want to streamline the scope of the questions to what it considers ‘proportionate…to provide some authoritative clarity…’ (McFarlane LJ at para  of Re H-L).
- In Re H-L, the appeal was successful on a limited basis and the permission to instruct the expert was curtailed to what McFarlane LJ described as a ‘targeted paper exercise’. This may be the sort of limited application that will succeed in the future.
- The assessment of whether it is necessary to instruct an expert is strictly a case management decision and therefore a matter for the allocated judge/trial judge.
- Although the appeal in the instant case was partially allowed, the Court of Appeal has made it clear in a number of recent cases that robust and vigorous case management decisions will be upheld and supported on any subsequent appeal.
The President concludes his third View by saying:
‘Case management judges must take appropriate steps to encourage compliance by experts with these requirements. Judges cannot of course tell experts what they are to say; but they can require compliance with PD25B. And there is no reason why case management judges should not, if appropriate, specify the maximum length of an expert’s report. The courts have for some time been doing say in relation to witness statements and skeleton arguments. So, why not for expert’s reports? Many expert’s reports, I suspect, require no more than (say) 25 or perhaps 50 pages, if that. Here, as elsewhere, the case management judge must have regard to the overriding objective and must confine the expert to what is necessary.’
The message on expert evidence is loud and clear. But there will always be exceptional cases, and judicial discretion…
Geraldine Morris is a solicitor and head of the LexisPSL Family team