Experts: from 'reasonably required' to 'necessary

New family rules to define and restrict the use and instruction of experts have been introduced during a period when there is ongoing and considerable scrutiny about their cost, quality and effectiveness in resolving litigated disputes.

The most notable change introduced by the Family Procedure Rules 2010, Part 25 at the end of January 2013 is the requirement to restrict opinion evidence to that which in the opinion of the court is 'necessary' in place of the old rule of that which is 'reasonably required to assist the court to resolve the proceedings'.

Sir James Munby, the president of the Family Division has made clear on two different panels of the Court of Appeal in Re TG and Re H-L that the new test gives more control to the court over expert evidence, empowering family judges with the ability to make robust case management decisions to make sure that such evidence is focused and relevant. While not precisely defining what is meant by 'necessary', it has a meaning lying closer to 'indispensable' as opposed to 'useful', 'reasonable' or 'desirable'.

This is bound to spark future further debate about what is meant by 'necessary' in this context, but the Court of Appeal is upholding and supporting robust and vigorous case management decisions made in family proceedings.

The new rules mean that practitioners need to focus on the matters to which an expert will truly bring knowledge, and to ensure that this can be provided in a written report, to avoid an expert attending court except where necessary in the interests of justice.

Part 25 is accompanied by ?a lengthy Practice Direction which potentially increases complexity and formality in comparison to previous guidance including case law ?and more recently, the Civil Procedure Rules 1998. Greater responsibility must be taken to keep the expert informed during the proceedings and after the final hearing.

Proportionate and relevant

It has long been a key principle of good practice to ensure that any step taken in family litigation is kept proportionate and relevant. Good preparation involves a careful selection of the expert according to his or her relevant experience and qualifications. A sensible and informed discussion between the lawyers for each party allows the opportunity for agreement to be reached about the choice and terms of instruction of the expert before seeking permission at the stage when the court makes case management decisions.

In children cases, this means seeking permission by no later than the first hearing dispute resolution hearing appointment, whereas in financial remedy proceedings, permission must be sought by the time of the ?first appointment.

Understandably, there is concern that the use of experts will be less commonplace as a result of changes forced by budgeting considerations. Evidence is increasingly being used to argue that the appointment of experts increases public expense and increases delay.

A recent Cafcass study identified children cases in which experts were instructed lasted an additional 12 weeks in comparison to cases without that instruction. The Family Justice Review, independently led by David Norgrove in 2011 identified 'an increasing and '¦ unjustified use of expert witness reports, with consequent delay for the children'.

This was subsequently ?relied on by Family Justice Minister Lord McNally in announcing a consultation ?in May 2013 on the introduction of new national standards to raise the quality of experts ?used in family courts.
That announcement contained an indication that £52m had been spent during the period of The Family Justice Review (namely during the 12 month period up to October 2011) on expert reports in family proceedings.

Altogether, it is perhaps unsurprising that family ?judges are applying their case management powers to further limit, control and define the ?use of experts. SJ