CHAPTER TWO – EXPERT EVIDENCE: KEY PRINCIPLES
Introduction to the Chapter
This chapter will focus on the key principles when it comes to instruct expert evidence in light of case law but also the Family Procedure Rules 2010 [‘FPR’]. These key principles are relevant to each area that this book will consider.
Opinion Evidence
Before focusing on expert evidence, the concept of opinion evidence will be addressed as it is important from the outset that this is distinguished. Section 3 of the Civil Evidence Act 1972 provides as follows:
“3 Admissibility of expert opinion and certain expressions of non-expert opinion
(1) Subject to any rules of court made in pursuance of . . . this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3) In this section “relevant matter” includes an issue in the proceedings in question.”
This provision is extended to include the evidence of a witness who is not called by s.1 of the Civil Evidence Act 1995, which provides:
“(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
(2) In this Act—
(a) hearsay means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and
(b) references to hearsay include hearsay of whatever degree.”
Section 13 of the 1995 Act provides that a “statement” means “any representation of fact or opinion, however made”. Accordingly, as set out in Phipson, at [29-03], this provision “covers statements of opinion admissible under the 1972 Act”.
As to the admissibility of such evidence, the issue was considered in the Court of Appeal in C v M[1], it was stated at paragraph 81:
‘This issue is addressed in some detail in Phipson, at [33-112], as set out in D (A Child) at [72], which I repeat (with some footnotes incorporated):
“[33-112] Although in general inadmissible, the opinions or beliefs of witnesses who are not experts are admissible in proof of the matters mentioned below, on grounds of necessity, more direct and positive evidence being often unobtainable. Moreover, it has long been thought, and for civil cases it has now been declared by s.3(2) of the Civil Evidence Act 1972, that non-expert opinion may be received as evidence of the facts intended to be conveyed by that expression of opinion. Thus there is no blanket rule that a factual witness may not include opinion evidence in his witness statement in civil cases. There are numerous authorities which exemplify that a witness of fact may give opinion evidence which relates to the factual evidence he is giving, particularly if he has relevant experience or knowledge. An example is where the evidence given is to a hypothetical situation as to what would or could have happened [MAD Atelier International BV v Manes [2021] EWHC 1899 (Comm) at [11]]. In Rasool v West Midlands Passenger Transport Board [[1974] 3 All E.R. 638] an account of a witness of a road accident was received notwithstanding the fact that it contained the words “the bus driver was in no way to blame for the accident”. The court treated them as admissible although the 1972 Act did not fall to be considered, and the point was not argued [This passage in the 17th edition of Phipson was followed in Lawrence v Kent County Council [2012] EWCA Civ 493, which observed that time and time again one sees references to the opinions of a factual witness in judgments without any suggestion that they are totally irrelevant (at [25])].
The statute purports to declare the law, and it is thought that the position must be the same in criminal cases. This proposition is given emphatic support by R. v Johnson [[1994] Crim. L.R. 376 CA] where a witness testified that she had seen the victim of a rape and buggery of the defendant shortly after the incident and that although she had initially thought that the victim was play-acting, she had come to believe that her distress was genuine.
In civil cases, hearsay evidence of opinion is admissible under s.1 of the Civil Evidence Act 1995 (which renders all hearsay, whether of fact or opinion admissible). This provision extends to admissible non expert opinion of the kind discussed here.”
I do not propose to quote again from Lawrence v Kent County Council [2012] EWCA Civ 493, which is set out in D (A Child), at [73].’
Expert Evidence – Basic Principles
The key provision is Part 25 of the FPR 2010. Part 25 establishes the procedural framework governing the instruction, use, and control of expert evidence within family proceedings. Its primary purpose is to ensure that expert evidence is used only when necessary and that such evidence assists the court in the resolution of disputes. The rules cement both the overriding duty of experts to the court and the procedural mechanisms for obtaining permission to adduce expert evidence.
The rules contain the following. 25.2 outlines key definitions, including that of proceedings concerning children. 25.2 provides key definitions that shape the operation of Part 25. The term ‘children proceedings’ encompasses those referred to in rules 12.1 and 14.1, as well as any proceedings relating wholly or mainly to the maintenance or upbringing of a minor (r.25.2(1)(a)). It also extends to applications for permission to commence or intervene in such proceedings (r.25.2(1)(b)–(c)). The definition is expressly prescribed for the purposes of section 13(9) of the Children and Families Act 2014.
Part 25 requires reading in full. It includes rules relating to:
The rule also defines ‘expert’ as any individual providing expert evidence for use in proceedings, excluding activities that do not constitute expert evidence within the meaning of section 13(8) of the 2014 Act. As outlined by Cazalet J in Note Re R (A Minor) (Expert’s Evidence)[2]:
‘Expert witnesses are in a privileged position; indeed, only experts are permitted to give an opinion in evidence. Outside the legal field the court itself has no expertise and for that reason frequently has to rely on the evidence of experts. Such experts must express only opinions which they genuinely hold and which are not biased in favour of one particular party.’
A ‘single joint expert’ refers to a person instructed jointly by two or more parties (r.25.2(1)). The rules deal with a number of key principles, when it comes to preparing applications, asking questions of the expert, and the duties of experts.
Duties of Experts
Rule 25.3 establishes that experts owe their paramount duty to the court rather than to the party instructing or remunerating them. This duty of independence and impartiality is reinforced by Practice Direction 25B, which delineates the particular responsibilities of experts, including the contents and form of their reports, and their obligation to attend court where necessary.
Control of Expert Evidence
For proceedings concerning children, the control of expert evidence is governed by section 13 of the Children and Families Act 2014, which imposes a similarly stringent test of necessity and underscores judicial control over expert involvement.
Sir James Munby P of Re: H L (A Child) [3] defined “necessary” as:
‘Lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand’, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable’.
Further, Sir James Munby P in Re H-L (Expert Evidence: Test for Permission)[4]: stated:
‘[3] … is that “necessary” means necessary. It is, after all, an ordinary English word. It is a familiar expression nowadays in family law, not least because of the central role it plays, for example, in Article 8 of the European Convention and the wider Strasbourg jurisprudence … It “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.”’
Section 13(7) of the CFA 2014 sets out the factors to be considered by the court when deciding whether to give permission
Factors relevant to the court
Rule 25.5 outlines the considerations the court must consider when determining whether to grant permission. In children proceedings, the court must consider compliance with rule 25.6 and any previous directions concerning expert evidence (r.25.5(1)). This is treated as a prescribed matter under section 13(7)(h) of the Children and Families Act 2014 and section 38(7B) of the Children Act 1989 (r.25.5(1A))
Timing and Contents of the Application
Parties are required to apply for permission to instruct experts as soon as possible (r.25.6). Specific deadlines are provided depending on the nature of the proceedings—for instance, by the Case Management Hearing in public law cases, or by the First Hearing Dispute Resolution Appointment in private law cases (r.25.6(a)–(e)).
Under rule 25.7, applications must comply with Part 18 and include the expert’s field, name (if known), relevant issues, consideration of a single joint expert, and other matters specified in Practice Directions 25C or 25D. In children proceedings, the application will also specify the questions for the expert to answer (r.25.7(3))
Expert Report and Questions
Expert evidence is generally to be given in writing (r.25.9(1)), and attendance at hearings will only be required when necessary for justice (r.25.9(2)).
Parties may put written questions to experts for clarification purposes (r.25.10(1)), but such questions must be proportionate, limited to one occasion, and submitted within ten days of receiving the report (r.25.10(2)). Non-compliance by an expert may lead to sanctions against the instructing party, including exclusion of the evidence or disallowance of expert costs (r.25.10(4))
Single Joint Experts
The court may direct that expert evidence be provided by a single joint expert where two or more parties wish to adduce evidence on the same issue (r.25.11(1)). If the parties cannot agree on the expert, the court may select one from a proposed list or determine another method of selection (r.25.11(2)). In practice, when parties are legally represented it is good practice to highlight and inform the other side of an intention to prepare a part 25 application. This will enable a collaborative approach to be utilised, including agreeing questions on and either / or basis, and identifying experts.
Rule 25.12 regulates instructions to single joint experts, which should ordinarily be set out in a jointly agreed letter. The court may also issue directions on payment, assessments, and fee limits, with parties being jointly and severally liable for payment unless otherwise directed (r.25.12(6)). If any party seeks a variation, or different provisions to apply to this, it must be address when making the application.
Other Provisions
An expert’s report must comply with Practice Direction 25B and include a declaration of compliance with the expert’s overriding duty (r.25.14(2)). Instructions to experts are not privileged (r.25.14(3)). Once disclosed, any party may rely on another’s expert report at a hearing (r.25.15).
The court may direct discussions between experts to identify and narrow issues in dispute, culminating in a statement of agreed and disagreed points with reasons (r.25.16). This promotes efficiency and reduces duplication of expert opinion.
Costs and Legal Aid
There can sometimes be issues relating to costs of experts. For example, if one party is legally aided and the other is not, or if the expert does not work within legal aid rates. These unfortunate issues can cause a delay to the proceedings. The costs of an expert is a consideration for the court (r.25.5 (e)).
Where the costs of the expert are going to be paid by one party alone, for example on their legal aid certificate, the judge should do a financial assessment and outline this on the face of the order as to why the other party should not share any costs. Where legal aid exists, there can be different approaches to be adopted. For example, a party may need to apply for ‘prior authority’ if the fees / expert hours are outside the usual scope for the legal aid certificate.
In international child abduction disputes, there are occasions when the issue as to the costs are dealt with at the end of the proceedings. An example of this arises from a specific judgment considering the costs of expert report as well as translation costs in MB v KB & Ors (Costs)[5].
Conclusion of Chapter
Part 25 of the Family Procedure Rules 2010 codifies a rigorous framework for the management of expert evidence, balancing the necessity for specialist input against the imperatives of proportionality, cost-efficiency, and judicial control. Its provisions reinforce the expert’s independence, promote cooperation between parties, and underscore the court’s ultimate authority in determining the scope and admissibility of expert evidence. Collectively, these rules require consideration alongside overriding objective of the FPR and practitioners should think about expert evidence in a manner which will enable cases to be dealt with justly, efficiently, and with due regard to the welfare of children. However, each case and area of law is fact specific and as such different considerations can arise.
Practitioners should also not forget reference the Children and Families Act 2014. Further, the manner in which expert evidence can be challenged and the strategic reason for doing so is again, fact specific and will be considered in each of the specialist chapters in this book. Practitioners should also consider the draft orders / precedents that exist, either prepared by Mr Justice Peel or whatever the local court utilise. These orders often include the necessary wording when it comes to the preparation of Part 25’s, granting of the applications and other provisions concerning experts, such as costs, further questions and attendance at hearings.
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[1] [2023] EWCA Civ 1449
[3] [2013] EWCA Civ 655
[4] [2013] EWCA 655
[5] [2023] EWHC 3299 (Fam)