A stripped down version of the FPR relating to experts in financial proceedings with highlighting of key elements. (The elements relating only to partisan experts are in dark blue).
Experts’ overriding duty to the court
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
(Particular duties of an expert are set out in Practice Direction 25B (The Duties of an Expert, the Expert’s Report and Arrangements for an Expert to Attend Court.)
Control of expert evidence in proceedings other than children proceedings
(1) This rule applies to proceedings other than children proceedings.
(2) A person may not without the permission of the court put expert evidence (in any form) before the court.
(3) The court may give permission as mentioned in paragraph (2) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings.
Further provisions about the court’s power to restrict expert evidence
(2) When deciding whether to give permission as mentioned in rule 25.4(1) in proceedings other than children proceedings, the court is to have regard in particular to –
(a) the issues to which the expert evidence would relate;
(b) the questions which the court would require the expert to answer;
(c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings;
(d) any failure to comply with rule 25.6 or any direction of the court about expert evidence; and
(e) the cost of the expert evidence.
When to apply for the court’s permission
Unless the court directs otherwise, parties must apply for the court’s permission as mentioned in … rule 25.4(2) as soon as possible and –
(d) in proceedings for a financial remedy, no later than the first appointment; …
What an application notice requesting the court’s permission must include
(1) Part 18 applies to an application for the court’s permission as mentioned in … rule 25.4(2).
(2) In any proceedings –
(a) the application notice requesting the court’s permission as mentioned in … rule 25.4(2) must state –
(i) the field in which the expert evidence is required;
(ii) where practicable, the name of the proposed expert;
(iii) the issues to which the expert evidence is to relate;
(iv) whether the expert evidence could be obtained from a single joint expert;
(v) the other matters set out in Practice Direction … 25D, as the case may be; and
(b) a draft of the order sought is to be attached to the application notice requesting the court’s permission and that draft order must set out the matters specified in Practice Direction …25D …
Where permission is granted
(1) In any proceedings, where the court grants permission as mentioned in … rule 25.4(2) –
(a) it will grant permission only in relation to the expert named or the field identified in the application notice requesting the court’s permission; and
(b) the court will give directions specifying the date by which the expert is to provide a written report.
General requirement for expert evidence to be given in a written report
(1) Expert evidence is to be given in a written report unless the court directs otherwise.
(2) The court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.
Written questions to experts
(1) A party may put written questions about an expert’s report to –
(a) an expert instructed by another party; or
(b) a single joint expert appointed under rule 25.11.
(2) Unless the court directs otherwise or a practice direction provides otherwise, written questions under paragraph (1)–
(a) must be proportionate;
(b) may be put once only;
(c) must be put within 10 days beginning with the date on which the expert’s report was served;
(d) must be for the purpose only of clarification of the report; and
(e) must be copied and sent to the other parties at the same time as they are sent to the expert.
(3) An expert’s answers to questions put in accordance with paragraph (1) –
(a) must be given within the timetable specified by the court; and
(b) are treated as part of the expert’s report.
(4) Where –
(a) a party has put a written question to an expert instructed by another party; and
(b) the expert does not answer that question,
the court may make one or both of the following orders in relation to the party who instructed the expert –
(i) that the party may not rely on the evidence of that expert; or
(ii) that the party may not recover the fees and expenses of that expert from any other party.
Court’s power to direct that evidence is to be given by a single joint expert
(1) Where two or more parties wish to put expert evidence before the court on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.
(2) Where the parties who wish to put expert evidence before the court (‘the relevant parties’) cannot agree who should be the single joint expert, the court may –
(a) select the expert from a list prepared or identified by the relevant parties; or
(b) direct that the expert be selected in such other manner as the court may direct.
Instructions to a single joint expert
(1) Where the court gives a direction under rule 25.11(1) for a single joint expert to be used, the instructions are to be contained in a jointly agreed letter unless the court directs otherwise.
(2) Where the instructions are to be contained in a jointly agreed letter, in default of agreement the instructions may be determined by the court on the written request of any relevant party copied to the other relevant parties.
(3) Where the court permits the relevant parties to give separate instructions to a single joint expert, each instructing party must, when giving instructions to the expert, at the same time send a copy of the instructions to the other relevant parties.
(4) The court may give directions about –
(a) the payment of the expert’s fees and expenses; and
(b) any inspection, examination or assessments which the expert wishes to carry out.
(5) The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expenses to the expert.
(6) Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses.
Power of court to direct a party to provide information
(1) Subject to paragraph (2), where a party has access to information which is not reasonably available to another party, the court may direct the party who has access to the information to –
(a) prepare and file a document recording the information; and
(b) serve a copy of that document on the other party.
Contents of report
(1) An expert’s report must comply with the requirements set out in Practice Direction 25B.
(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with the expert’s duty to the court.
(3) The instructions to the expert are not privileged against disclosure.
(Rule 21.1 explains what is meant by disclosure.)
Use by one party of expert’s report disclosed by another
Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at any hearing where an issue to which the report relates is being considered.
Discussions between experts
(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –
(a) identify and discuss the expert issues in the proceedings; and
(b) where possible, reach an agreed opinion on those issues.
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which –
(a) they agree; and
(b) they disagree, with a summary of their reasons for disagreeing.
Expert’s right to ask court for directions
(1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.
(2) Experts must, unless the court directs otherwise, provide copies of the proposed requests for directions under paragraph (1) –
(a) to the party instructing them, at least 7 days before they file the requests; and
(b) to all other parties, at least 4 days before they file them.
(3) The court, when it gives directions, may also direct that a party be served with a copy of the directions.
Copies of orders and other documents
Unless the court directs otherwise, a copy of any order or other document affecting an expert filed with the court after the expert has been instructed, must be served on the expert by the party who instructed the expert or, in the case of a single joint expert, the party who was responsible for instructing the expert, within 2 days of that party receiving the order or other document.
Action after final hearing
(1) Within 10 business days after the final hearing, the party who instructed the expert or, in the case of a single joint expert, the party who was responsible for instructing the expert, must inform the expert in writing about the court’s determination and the use made by the court of the expert’s evidence.
(2) Unless the court directs otherwise, the party who instructed the expert or, in the case of the single joint expert, the party who was responsible for instructing the expert, must send to the expert a copy of the court’s final order, any transcript or written record of the court’s decision, and its reasons for reaching its decision, within 10 business days from the date when the party received the order and any such transcript or record.
(1) This rule applies where the court appoints one or more persons under section 70 of the Senior Courts Act 1981 as an assessor.
(2) An assessor will assist the court in dealing with a matter in which the assessor has skill and experience.
(3) The assessor will take such part in the proceedings as the court may direct and in particular the court may direct an assessor to –
(a) prepare a report for the court on any matter at issue in the proceedings; and
(b) attend the whole or any part of the hearing to advise the court on any such matter.
(4) If the assessor prepares a report for the court before the hearing has begun –
(a) the court will send a copy to each of the parties; and
(b) the parties may use it at the hearing.
(5) Unless the court directs otherwise, an assessor will be paid at the daily rate payable for the time being to a fee-paid deputy district judge of the principal registry and an assessor’s fees will form part of the costs of the proceedings.
(6) The court may order any party to deposit in the court office a specified sum in respect of an assessor’s fees and, where it does so, the assessor will not be asked to act until the sum has been deposited.
(7) Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid out of money provided by Parliament.
PRACTICE DIRECTION 25A – EXPERTS AND ASSESSORS IN FAMILY PROCEEDINGS
This Practice Direction supplements FPR Part 25
This Practice Direction and Practice Directions 25B to E relate to expert evidence and supplement FPR Part 25. This Practice Direction applies to children proceedings and all other family proceedings.
Emergency and urgent cases
In emergency or urgent cases – for example, where, before formal issue of proceedings, a without-notice application is made to the court during or out of business hours; or where, after proceedings have been issued, a previously unforeseen need for (further) expert evidence arises at short notice – a party may wish to put expert evidence before the court without having complied with all or any part of Practice Directions 25B to E. In such circumstances, the party wishing to put the expert evidence before the court must apply forthwith to the court – where possible or appropriate, on notice to the other parties – for directions as to the future steps to be taken in respect of the expert evidence in question.
Pre-application instruction of experts
When experts’ reports are commissioned before the commencement of proceedings, it should be made clear to the expert that he or she may in due course be reporting to the court and should therefore consider himself or herself bound by the duties of an expert set out in Practice Direction 25B (The Duties of An Expert, the Expert’s Report and Arrangements for An Expert To Attend Court). In so far as possible the enquiries of the expert and subsequent letter of instruction should follow … 25D (Financial Remedy Proceedings and other Family Proceedings (except Children Proceedings) – the Use of Single Joint Experts and the Process Leading to Expert Evidence Being Put Before The Court).
It should be noted that the court’s permission is required to put expert evidence (in any form) before the court in all family proceedings (see (see section 13(5) of the 2014 Act and FPR 25.4(2)) … The court’s permission will be needed to put any expert evidence before the court which was obtained before proceedings have started.
PRACTICE DIRECTION 25B – THE DUTIES OF AN EXPERT, THE EXPERT’S REPORT AND ARRANGEMENTS FOR AN EXPERT TO ATTEND COURT
This Practice Direction supplements FPR Part 25
Scope of this Practice Direction
This Practice Direction focuses on the duties of an expert including the contents of the expert’s report and, where an expert is to attend court, the arrangements for such attendance.
The meaning of ‘expert’
In accordance with FPR 25.2(1), ‘expert’ means a person who provides expert evidence for use in family proceedings. …
An expert includes a reference to an expert team which can include ancillary workers in addition to experts. … The purpose of the term ‘expert team’ is to enable a multi-disciplinary team to undertake the assessment without the order having to name everyone who may be involved. The final expert’s report must, however, give information about those persons who have taken part in the assessment and their respective roles and who is responsible for the report.
The expert’s overriding duty
An expert in family proceedings has an overriding duty to the court that takes precedence over any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
Particular duties of the expert
An expert shall have regard to the following, among other, duties –
(a) to assist the court in accordance with the overriding duty;
(b) to provide advice to the court that conforms to the best practice of the expert’s profession;
(c) to answer the questions about which the expert is required to give an opinion …;
(d) to provide an opinion that is independent of the party or parties instructing the expert;
(e) to confine the opinion to matters material to the issues in the case and in relation only to the questions that are within the expert’s expertise (skill and experience);
(f) where a question has been put which falls outside the expert’s expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved or, in the rare case, as to whether a second opinion is required on a key issue and, if possible, what questions should be asked of the second expert;
(g) in expressing an opinion, to take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed;
(h) to inform those instructing the expert without delay of any change in the opinion and of the reason for the change.
The requirement for the court’s permission
The general rule in family proceedings is that the court’s permission is required to put expert evidence (in any form) before the court … The court is under a duty to restrict expert evidence to that which in the opinion of the court is necessary to assist the court to resolve the proceedings. The overriding objective in FPR1.1 applies when the court is exercising this duty …
Preliminary enquiries which the expert should expect to receive
In good time for the information requested to be available for –
(a) the court hearing when the court will decide whether to give permission for the expert evidence to be put before the court .. or
(b) the advocates’ meeting or discussion where one takes place before such a hearing, the party or parties intending to instruct the expert shall approach the expert with some information about the case.
The details of the information to be given to the expert are set out in … Practice Direction 25D paragraph 3.3 and include the nature of the proceedings, the questions for the expert, the time when the expert’s report is likely to be required, the timing of any hearing at which the expert may have to give evidence and how the expert’s fees will be funded.
Balancing the needs of the court and those of the expert
It is essential that there should be proper co-ordination between the court and the expert when drawing up the case management timetable: the needs of the court should be balanced with the needs of the expert whose forensic work is undertaken as an adjunct to his or her main professional duties.
The expert’s response to preliminary enquiries
In good time for the court hearing when the court will decide whether or not to give permission for the expert evidence to be put before the court … or for the advocates’ meeting or discussion where one takes place before that hearing, the party or parties intending to instruct the expert will need confirmation from the expert –
(a) that acceptance of the proposed instructions will not involve the expert in any conflict of interest;
(b) that the work required is within the expert’s expertise;
(c) that the expert is available to do the relevant work within the suggested time scale;
(d) when the expert is available to give evidence, of the dates and times to avoid and, where a hearing date has not been fixed, of the amount of notice the expert will require to make arrangements to come to court (or to give evidence by telephone conference or video link) without undue disruption to his or her normal professional routines;
(e) of the cost, including hourly or other charging rates, and likely hours to be spent attending experts’ meetings, attending court and writing the report (to include any examinations and interviews);
(f) of any representations which the expert wishes to make to the court about being named or otherwise identified in any public judgment given by the court.
Content of the expert’s report
The expert’s report shall be addressed to the court and prepared and filed in accordance with the court’s timetable and must –
(a) give details of the expert’s qualifications and experience;
(b) include a statement identifying the document(s) containing the material instructions and the substance of any oral instructions and, as far as necessary to explain any opinions or conclusions expressed in the report, summarising the facts and instructions which are material to the conclusions and opinions expressed;
(c) state who carried out any test, examination or interview which the expert has used for the report and whether or not the test, examination or interview has been carried out under the expert’s supervision;
(d) give details of the qualifications of any person who carried out the test, examination or interview;
(e) answer the questions about which the expert is to give an opinion and which relate to the issues in the case;
(f) in expressing an opinion to the court –
(i) take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material, including research material, that the expert has relied upon in forming an opinion;
(ii) describe the expert’s own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;
(iii) indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;
(iv) indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;
(g) where there is a range of opinion on any question to be answered by the expert –
(i) summarise the range of opinion;
(ii) identify and explain, within the range of opinions, any ‘unknown cause’, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;
(iii) give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court;
(h) contain a summary of the expert’s conclusions and opinions;
(i) contain a statement that the expert–
(i) has no conflict of interest of any kind, other than any conflict disclosed in his or her report;
(ii) does not consider that any interest disclosed affects his or her suitability as an expert witness on any issue on which he or she has given evidence;
(iii) will advise the instructing party if, between the date of the expert’s report and the final hearing, there is any change in circumstances which affects the expert’s answers to (i) or (ii) above;
(iv) understands their duty to the court and has complied with that duty; and
(v) is aware of the requirements of FPR Part 25 and this practice direction;
(j) be verified by a statement of truth in the following form –
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”
(FPR Part 17deals with statements of truth. Rule 17.6 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.)
Arrangements for experts to give evidence
Where the court has directed the attendance of an expert witness, the party who instructed the expert or party responsible for the instruction of the expert shall, by a date specified by the court prior to the hearing at which the expert is to give oral evidence (‘the specified date’) … ensure that –
(a) a date and time (if possible, convenient to the expert) are fixed for the court to hear the expert’s evidence, substantially in advance of the hearing at which the expert is to give oral evidence and no later than a specified date prior to that hearing …;
(b) if the expert’s oral evidence is not required, the expert is notified as soon as possible;
(c) the witness template accurately indicates how long the expert is likely to be giving evidence, in order to avoid the inconvenience of the expert being delayed at court;
(d) consideration is given in each case to whether some or all of the experts participate by telephone conference or video link, or submit their evidence in writing, to ensure that minimum disruption is caused to professional schedules and that costs are minimised.
Experts attending court
Where expert witnesses are to be called, all parties shall, by the specified date … ensure that –
(a) the parties’ advocates have identified (whether at an advocates’ meeting or by other means) the issues which the experts are to address;
(b) wherever possible, a logical sequence to the evidence is arranged, with experts of the same discipline giving evidence on the same day;
(c) the court is informed of any circumstance where all experts agree but a party nevertheless does not accept the agreed opinion, so that directions can be given for the proper consideration of the experts’ evidence and opinion;
(d) in the exceptional case the court is informed of the need for a witness summons.
PRACTICE DIRECTION 25D – FINANCIAL REMEDY PROCEEDINGS AND OTHER FAMILY PROCEEDINGS (EXCEPT CHILDREN PROCEEDINGS) – THE USE OF SINGLE JOINT EXPERTS AND THE PROCESS LEADING TO EXPERT EVIDENCE BEING PUT BEFORE THE COURT
This Practice Direction supplements FPR Part 25
Scope of this Practice Direction
This Practice Direction applies to financial remedy proceedings and other family proceedings except children proceedings and contains guidance on –
(a) the use of single joint experts;
(b) how to prepare for the hearing at which the court will consider whether to give permission for putting expert evidence (in any form) before the court including –
(i) preliminary enquiries of experts;
(ii) information to be given to the court before the hearing;
(c) the letter of instruction to the expert.
Single joint experts
FPR 25.4 applies to a single joint expert (‘SJE’) in addition to an expert instructed by one party. This means that the court’s permission is required to put expert evidence from an SJE (in any form) before the court. However, in family proceedings (except children proceedings) there is no requirement for the court’s permission to be obtained before instructing an expert. Wherever possible, expert evidence should be obtained from a single joint expert instructed by both or all the parties (‘SJE’). To that end, a party wishing to instruct an expert should first give the other party or parties a list of the names of one or more experts in the relevant speciality whom they consider suitable to be instructed.
Within 10 business days after receipt of the list of proposed experts, the other party or parties should indicate any objection to one or more of the named experts and, if so, supply the name(s) of one or more experts whom they consider suitable.
Each party should disclose whether they have already consulted any of the proposed experts about the issue(s) in question.
Where the parties cannot agree on the identity of the expert, each party should think carefully before instructing their own expert and seeking the permission of the court to put that expert evidence before it because of the costs implications. Disagreements about the use and identity of an expert may be better managed by the court in the context of an application for the court’s permission to put the expert evidence before the court and for directions for the use of an SJE (see paragraph 2.6 below).
Agreement to instruct separate experts
If the parties agree to instruct separate experts and to seek the permission of the court to put the separate expert evidence before it –
(a) they should agree in advance that the reports will be disclosed; and
(b) the instructions to each expert should comply, so far as appropriate, with paragraphs 4.1 and 6.1 below (Letter of instruction).
Agreement to instruct an SJE
If there is agreement to instruct an SJE, before applying to the court for permission to put the expert evidence before it and directions for the use of an SJE, the parties should –
(a) so far as appropriate, comply with the guidance in paragraphs 3.3 (Preliminary enquiries of the expert) and paragraphs 3.11 and 3.12 below;
(b) receive the expert’s confirmation in response to preliminary enquiries referred to in paragraph 8.1 of Practice Direction 25B;
(c) have agreed in what proportion the SJE’s fee is to be shared between them (at least in the first instance) and when it is to be paid; and
(d) if applicable, have obtained agreement for public funding.
The instructions to the SJE should comply, so far as appropriate, with paragraphs 4.1 and 6.1 below (Letter of instruction).
The test for permission and preparation for the permission hearing
The test in FPR 25.4(3) which the court is to apply to determine whether permission should be given for expert evidence to be put before the court has been altered from one which refers to expert evidence being restricted by the court to that which is reasonably required to resolve the proceedings to one which refers to the expert evidence being in the opinion of the court necessary to assist the court to resolve the proceedings. The overriding objective of the FPR, which is to enable the court to deal with cases justly, having regard to any welfare issues involved, continues to apply when the court is making the decision whether to give permission. In addition, the rules (FPR 25.5(2)) now tell the court what factors it is to have particular regard to when deciding whether to give permission.
Paragraphs 3.3 to 3.12 below give guidance on how to prepare for the hearing at which the court will apply the test in FPR 25.4(3) and the factors in FPR 25.5(2) and decide whether to give permission for expert evidence to be put before the court. The purpose of the preparation is to ensure that the court has the information required to enable it to exercise its powers under FPR 25.4(2) and 25.5(2) in line with FPR 25.4(3).
Preliminary enquiries of the expert
In good time for the information requested to be available for the hearing at which the court will consider whether to give permission for expert evidence to be put before the court, the party or parties intending to instruct the expert shall approach the expert with the following information –
(a) the nature of the proceedings and the issues likely to require determination by the court;
(b) the issues in the proceedings to which the expert evidence is to relate;
(c) the questions about which the expert is to be asked to give an opinion and which relate to the issues in the case;
(d) whether permission is to be asked of the court for the use of another expert in the same or any related field (that is, to give an opinion on the same or related questions);
(e) the volume of reading which the expert will need to undertake;
(f) whether or not it will be necessary for the expert to conduct interviews and, if so, with whom;
(g) the likely timetable of legal steps;
(h) when the expert’s report is likely to be required;
(i) whether and, if so, what date has been fixed by the court for any hearing at which the expert may be required to give evidence (in particular the Final Hearing); and whether it may be possible for the expert to give evidence by telephone conference or video link: see paragraphs 10.1 and 10.2 (Arrangements for experts to give evidence) of Practice Direction 25B;
(j) the possibility of making, through their instructing solicitors, representations to the court about being named or otherwise identified in any public judgment given by the court;
(k) whether the instructing party has public funding and the legal aid rates of payment which are applicable.
Expert’s response to preliminary enquiries
In good time for the hearing at which the court will consider whether to give permission for expert evidence to be put before the court, the solicitors or party intending to instruct the expert must obtain the confirmations from the expert referred to in paragraph 8.1 of Practice Direction 25B. These confirmations include that the work is within the expert’s expertise, the expert is available to do the work within the relevant timescale and the expert’s costs.
Where parties cannot agree who should be the single joint expert before the hearing at which the court will consider whether to give permission for expert evidence to be put before the court, they should obtain the above confirmations in respect of all experts whom they intend to put to the court for the purposes of rule 25.11(2)(a) as candidates for the appointment.
The application for the court’s permission to put expert evidence before the court
Timing and oral applications for the court’s permission
An application for the court’s permission to put expert evidence before the court should be made as soon as it becomes apparent that it is necessary to make it. FPR 25.6 makes provision about the time by which applications for the court’s permission should be made.
Applications should, wherever possible, be made so that they are considered at any directions hearing or other hearing for which a date has been fixed or for which a date is about to be fixed. It should be noted that one application notice can be used by a party to make more than one application for an order or direction at a hearing held during the course of proceedings. An application for the court’s permission to put expert evidence before the court may therefore be included in an application notice requesting other orders to be made at such a hearing.
Where a date for a hearing has been fixed, a party who wishes to make an application at that hearing but does not have sufficient time to file an application notice should as soon as possible inform the court (if possible in writing) and, if possible, the other parties of the nature of the application and the reason for it. The party should provide the court and the other party with as much as possible of the information referred to in FPR 25.7 and paragraph 3.11 below. That party should then make the application orally at the hearing. An oral application of this kind should be the exception and reserved for genuine cases where circumstances are such that it has only become apparent shortly before the hearing that an expert opinion is necessary.
In financial remedy proceedings, unless the court directs otherwise, parties must apply for permission to put expert evidence before the court as soon as possible and no later than the first appointment. The expectation is that the court will give directions extending the time by which permission should be obtained where there is good reason for parties to delay the decision whether to use expert evidence and make an application for the court’s permission.
Examples of situations where the time for requesting permission to put expert evidence before the court is likely to be extended are where –
(a) a decision about the need for expert evidence cannot be made until replies to questionnaires in relation to Forms E have been fully considered; or
(b) valuations of property are agreed for the purposes of the Financial Dispute Resolution appointment but no agreement is reached to resolve the proceedings at that appointment and the court cannot make a consent order as mentioned in FPR 9.17(8). In these circumstances, it may become clear to a party that he or she will want to use expert valuations of property and an application for the court’s permission for such valuation to be put before it may be made orally at the end of the appointment to avoid the need for a separate hearing about this issue. As with other oral applications, the party should provide the court and the other party with as much as possible of the information referred to in FPR 25.7 and paragraph 3.11 below. FPR 9.17(9) requires the court to give directions for the future course of the proceedings where it has not made a consent order including, where appropriate, the filing of evidence.
In addition to the matters specified in FPR 25.7(2)(a), an application for the court’s permission to put expert evidence before the court must state –
(a) the discipline, qualifications and expertise of the expert (by way of C.V. where possible);
(b) the expert’s availability to undertake the work;
(c) the timetable for the report;
(d) the responsibility for instruction;
(e) whether the expert evidence can properly be obtained by only one party;
(f) why the expert evidence proposed cannot properly be given by an expert already instructed in the proceedings;
(g) the likely cost of the report on an hourly or other charging basis:
(h) the proposed apportionment (at least in the first instance) of any jointly instructed expert’s fee; when it is to be paid; and, if applicable, whether public funding has been approved.
The draft order to be attached to the application for the court’s permission
FPR 25.7(2)(b) provides that a draft of the order giving the court’s permission to put expert evidence before the court 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;
(b) the party who is to be responsible for drafting the letter of instruction and providing the documents to the expert;
(c) the timetable within which the report is to be prepared, filed and served;
(d) the disclosure of the report to the parties and to any other expert;
(e) the organisation of, preparation for and conduct of any experts’ discussion (see Practice Direction 25E – Discussions between Experts in Family Proceedings);
(f) the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion;
(g) making available to the court at an early opportunity the expert reports in electronic form;
(h) 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 by a date specified by the court prior to the hearing at which the expert is to give oral evidence.
Letter of instruction
The party responsible for instructing the expert shall, within 5 business days after the permission hearing, prepare (in agreement with the other parties where appropriate), file and serve a letter of instruction to the expert which shall –
(a) set out the context in which the expert’s opinion is sought (including any ethnic, cultural, religious or linguistic contexts);
(b) set out the questions which the expert is required to answer and 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; and
(iv) reflect what the expert has been requested to do by the court;
(c) list the documentation provided, or provide for the expert an indexed and paginated bundle which shall include –
(i) an agreed list of essential reading; and
(ii) a copy of this Practice Direction and Practice Directions 25B, 25E and where appropriate Practice Direction 15B;
(d) identify any materials provided to the expert which have not been produced either as original medical (or other professional) records or in response to an instruction from a party, and state the source of that material (such materials may contain an assumption as to the standard of proof, the admissibility or otherwise of hearsay evidence, and other important procedural and substantive questions relating to the different purposes of other enquiries);
(e) identify all requests to third parties for disclosure and their responses in order to avoid partial disclosure, which tends only to prove a case rather than give full and frank information;
(f) identify the relevant people concerned with the proceedings and inform the expert of his or her right to talk to them provided that an accurate record is made of the discussions;
(g) identify any other expert instructed in the proceedings and advise the expert of their right to talk to the other experts provided that an accurate record is made of the discussions;
(h) subject to any public funding requirement for prior authority, define the contractual basis upon which the expert is retained and in particular the funding mechanism including how much the expert will be paid (an hourly rate and overall estimate should already have been obtained), when the expert will be paid, and what limitation there might be on the amount the expert can charge for the work which they will have to do. In cases where the parties are publicly funded, there may also be a brief explanation of the costs and expenses excluded from public funding by Funding Code criterion 1.3 and the detailed assessment process.
Adult who is a protected party
Where the adult is a protected party, that party’s representative shall be involved in any instruction of an expert, including the instruction of an expert to assess whether the adult, although a protected party, is competent to give evidence (see Practice Direction15B – Adults Who May Be Protected Parties and Children Who May Become Protected Parties in Family Proceedings).
Asking the court to settle the letter of instruction to a single joint expert
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. Where a legal adviser has been appointed as the case manager, the request should also be sent to the appointed 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 party responsible for instructing the expert for transmission forthwith to the expert, and copy it to the other instructing parties for information.
PRACTICE DIRECTION 25E – DISCUSSIONS BETWEEN EXPERTS IN FAMILY PROCEEDINGS
This Practice Direction supplements FPR Part 25
This Practice Direction supports FPR25.16 by providing details about how and when experts discussions are to be arranged, their purpose and content. This Practice Direction applies to children proceedings and all other family proceedings.
Experts’ discussion or meeting: purpose
In accordance with FPR 25.16, the court may, at any stage, direct a discussion between experts for the purpose outlined in paragraph (1) of that rule. FPR 25.16(2) provides that the court may specify the issues which the experts must discuss. The expectation is that those issues will include –
(a) the reasons for disagreement on any expert question and what, if any, action needs to be taken to resolve any outstanding disagreement or question;
(b) an explanation of existing evidence or additional evidence in order to assist the court to determine the issues.
One of the aims of specifying the issues for discussion is to limit, wherever possible, the need for the experts to attend court to give oral evidence.
Experts’ discussion or meeting: arrangements
Subject to the directions given by the court under FPR25.16, the solicitor or other professional who is given the responsibility by the court (‘the nominated professional’) shall within 15 business days after the experts’ reports have been filed and copied to the other parties, make arrangements for the experts to have discussions. Subject to any specification by the court of the issues which experts must discuss under FPR 25.16(2), the following matters should be considered as appropriate –
(a) where permission has been given for the instruction of experts from different disciplines, a global discussion may be held relating to those questions that concern all or most of them;
(b) separate discussions may have to be held among experts from the same or related disciplines, but care should be taken to ensure that the discussions complement each other so that related questions are discussed by all relevant experts;
(c) 5 business days prior to a discussion or meeting, the nominated professional should formulate an agenda including a list of questions for consideration. The agenda should, subject always to the provisions of FPR 25.16(1), focus on those questions which are intended to clarify areas of agreement or disagreement.
Questions which repeat questions asked in the court order giving permission for an expert to be instructed or expert evidence to be put before the court or the letter of instruction or which seek to rehearse cross-examination in advance of the hearing should be rejected as likely to defeat the purpose of the meeting. The agenda may usefully take the form of a list of questions to be circulated among the other parties in advance and should comprise all questions that each party wishes the experts to consider.
The agenda and list of questions should be sent to each of the experts not later than 2 business days before the discussion;
(d) the nominated professional may exercise his or her discretion to accept further questions after the agenda with the list of questions has been circulated to the parties. Only in exceptional circumstances should questions be added to the agenda within the 2-day period before the meeting. Under no circumstances should any question received on the day of or during the meeting be accepted. This does not preclude questions arising during the meeting for the purposes of clarification. Strictness in this regard is vital, for adequate notice of the questions enables the parties to identify and isolate the expert issues in the case before the meeting so that the experts’ discussion at the meeting can concentrate on those issues;
(e) the discussion should be chaired by the nominated professional. A minute must be taken of the questions answered by the experts. Where the court has given a direction under FPR 25.16(3) and subject to that direction, a Statement of Agreement and Disagreement must be prepared which should be agreed and signed by each of the experts who participated in the discussion. In accordance with FPR25.16(3) the statement must contain a summary of the experts’ reasons for disagreeing. The statement should be served and filed not later than 5 business days after the discussion has taken place;
(f) in each case, whether some or all of the experts participate by telephone conference or video link to ensure that minimum disruption is caused to professional schedules and that costs are minimised.
Meetings or conferences attended by a jointly instructed expert
Jointly instructed experts should not attend any meeting or conference which is not a joint one, unless all the parties have agreed in writing or the court has directed that such a meeting may be held, and it is agreed or directed who is to pay the expert’s fees for the meeting or conference. Any meeting or conference attended by a jointly instructed expert should be proportionate to the case.
(… Practice Direction 25D paragraphs 2.1 to 2.7 deals with single joint experts in relation to other family proceedings).