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.
2.1 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.
3.1 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 either Practice Direction 25C (Children Proceedings – the Use of Single Joint Experts and the Process Leading to an Expert Being Instructed or Expert Evidence Being Put Before The Court) or 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).
In particular, a prospective party to children proceedings (for example, a local authority) should always write a letter of instruction when asking a potential witness for a report or an opinion, whether that request is within proceedings or pre-proceedings (for example, when commissioning specialist assessment materials, reports from a treating expert or other evidential materials); and the letter of instruction should conform to the principles set out in Practice Direction 25C.
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)). In children proceedings, the court's permission is also required for an expert to be instructed and for a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in the proceedings section 13(1) and (3) of the 2014 Act. Where the court's permission has not been given in accordance with section 13(1) and (3) of the 2014 Act, evidence resulting from such instructions or examination or other assessment is inadmissible unless the court rules otherwise section 13 (2) and (4) of the 2014 Act and (4)). The court's permission will be needed to put any expert evidence before the court which was obtained before proceedings have started.
Attention is drawn to Practice Direction 15B (Adults Who May Be Protected Parties and Children Who May Become Protected Parties In Family Proceedings) which gives guidance relating to proceedings where an adult party may not have capacity to conduct the litigation or to instruct an expert.
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Michael Robinson © 2014
Family law information for parents whose children are resident in England and Wales
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