Expert evidence – Court of Protection Handbook

Expert evidence and admissibility

In Kennedy v Cordia (Services) LLP [2016] UKSC 6, the Supreme Court had to consider a Scottish appeal arising out of a personal injury claim made by a home carer against her employer Cordia (Services) LLP following an injury to her wrist when she slipped on a snow covered footpath on the way to a home visit. An issue arose as to whether a witness who gave evidence about health and safety requirements, risk assessments and the availability of ‘add-ons’ (material that employers could provide to employees to add to their footwear to help prevent slips) was an expert witness.

The Supreme Court set out four general matters which fell to be addressed in the use of expert evidence in civil cases: (i) the admissibility of such evidence (ii) the responsibility of a party’s legal team to make sure the expert keeps to his or her role of giving the court useful information (iii) the court’s policing of the performance of the expert’s duties and (iv) economy in litigation.

The question of admissibility was held to turn on four considerations: (i) whether the proposed expert evidence would assist the court in its task; (ii) whether the witness has the necessary knowledge and experience; (iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and (iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

Despite being a Scottish case about employers’ liability, this appeal is of use more generally across the UK as a guide to expert witness evidence in civil proceedings (including, of course, COP cases and adult incapacity cases) and contains a helpful review of case law relevant to the four considerations on admissibility. One quote stands out as particularly apt when considering expert reports on capacity: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion” (Lord Prosser in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604).

[A version of this note appeared in the April 2016 39 Essex Chambers Mental Capacity Law Newsletter]

Experts, litigants in person and compulsory examinations: a further shot across the bows

The Court of Appeal has delivered a highly critical judgment on the failure of the Family Court to comply with the law and FPRs on expert evidence: see Re C [2015] EWCA Civ 539.

The judgment makes important comments about:

– the control of expert evidence

– how litigants in person should receive a fair hearing and

– the basic principle that a capacitous adult cannot be compelled to submit to a medical examination.

Its relevance extends beyond the family sphere and should be borne in mind by those practicing in the COP. Lord Justice Aitkens comments at paragraph 50 that:

The problem of unnecessary expert reports has not been confined to family cases. The result of a proliferation of unnecessary expert reports (in whatever type of case) is that courts are all too often swamped with materials that are either not relevant to the issues in the case or are not specifically focused on the relevant issues. Unnecessary expert reports cause delays and, inevitably, costs are increased. In family cases where public funding is often involved this had meant that taxpayers’ money has sometimes been wasted. Section 13 of the Children and Families Act 2014 and part 25 of the FPR now lay down firm statutory and procedural rules that must be applied in respect of expert evidence in family proceedings. It is the duty of all family law practitioners and the courts to learn, mark and digest these provisions and ensure that they are applied rigorously.

The case involved a dispute between two separated parents of a young child. The mother was represented and the father, who had limited English and was supported by an interpreter. The child was not represented but a Cafcass Family Court Advisor (FCA) was present.

The mother did not agree to the father having unsupervised contact and believed he had a personality disorder.

Counsel for the mother asked in the course of oral submissions for a psychological assessment of the father. This was not supported by a written application as required by Part 25 of the Family Procedure Rules, although counsel offered to ensure such an application was made. In fact no written application was made.

The FCA considered some of the mother’s comments about the father’s supervised contact to be unfair and was not persuaded of the need for a psychological assessment.

Lord Justice Ryder quoted the following exchange with concern:

Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”. 

A “But that is wrong”. 

Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.

Ryder LJ noted the recommendations by the Judicial College as to how to ensure that litigants in person are treated fairly by the court:

13. The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

14. […] The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.

He suggested that the time may have come for this process to be formalised into practice guidance.

The court’s written reasons were criticised for being nothing more than a recital of the mother’s case without analysis and did not address why the expert evidence was “necessary to assist the court to resolve the proceedings justly” (s 13(6) Children and Families Ac 2014).

Instead the whole statutory scheme and procedural scheme had simply been ignored. There had furthermore been an assumption that the Legal Aid Agency would meet the mother’s costs.

Ryder LJ commented

It should by now be obvious that on any reading of the process undertaken by the family court there was no compliance with the statutory scheme and the procedural code. That had the effect of putting a weapon into the hand of the mother without good reason. The father was placed under an obligation to do something that was not reasoned on the evidence and in respect of which, if he failed to comply, adverse inferences could be drawn which could affect the welfare determination. That was not a fair process. Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

35. The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

36. The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

Ryder LJ said that the magistrates’ order could not stand and noted that the circuit judge’s decision on appeal had merely considered the matter from the point of view of the magistrates and had been a superficial approach to an important question of procedural justice. It also could not stand. The appeal was allowed and the matter remitted to the Family Division Liason Judge.

Comment

Although the test in the Court of Protection Rules (COPR 121) is for expert evidence to be limited to that which is reasonably required to resolve the proceedings it has been clear for some time that this provision is on borrowed time and the likelihood is that a similar test to that set out in s13 CFA 2014 will be adopted.

In the meantime the comments about expert evidence here are entirely consistent with those of the Court of Appeal in Re MN [2015] EWCA Civ 411.

The reference to the advice of the Judicial College regarding litigants in person is useful and we agree with his Lordship that formal practice guidance on this issue would be of benefit.

Lastly practitioners in the COP frequently have to grapple with the difficult question of parties other than P whose conduct may suggest they that they have an undiagnosed disorder or may lack litigation capacity. This case is a firm reminder that a capacitous adult cannot be compelled to have a medical examination, but suggests that a recital should warn of the possibility of an inference being drawn if a party does not co-operate.

When does the court need an expert to assist as to veracity?

Summary

in Wigan Council v M, C, P, GM, G, B and CC [2015] EWFC 8, Peter Jackson had to consider whether expert evidence was required in family proceedings in relation to (1) the capacity of a witness to give evidence and (2) the witness’s veracity. As materially similar principles apply by analogy in COP proceedings, the conclusions reached by Peter Jackson J are equally applicable to judges of and practitioners appearing in that court.

Two children, aged 15 and 16, alleged that they had been sexually abused by their stepfather. At a case management hearing, the stepfather applied for a ‘veracity assessment’ and an assessment of the children’s ability to give evidence. The application was supported by the other parties and granted by the court.

An experienced clinical psychologist with special experience in the analysis of forensic interviews was instructed. The expert concluded that there was nothing in what the children said that required the interpretation of an expert. The children were articulate teenagers who were capable of giving evidence.

Peter Jackson J, whilst acknowledging that an assessment of capacity to give evidence, and the arrangements that should be made to assist a witness to do so fairly is a proper subject for expert advice where necessary, it is not necessary in every case. He identified three principles:

As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true.
Expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.
Cases in which it will be necessary to seek expert evidence will nowadays be rare. Judges have been trained in and are expected to be familiar with the assessment of evidence. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.

Peter Jackson J also expressly agreed with what was said by Baker J in A London Borough Council v K [2009] EWHC 850 (Fam) that veracity or validity assessments have a limited role to play in family proceedings. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone.

Comment

In the COP, as in the Family Court, an expert may give evidence on questions going to factual matters, such as the veracity or truthfulness of a witness but the final decision upon those matters remains for the judge. Indeed, the ultimate questions of whether P has capacity and what is in their best interests are matters for the court.

The equivalent to Part 25 of the Family Procedure Rules 2010 is COPR Part 15 accompanied by PD 15A. Pursuant to rule 121, the COP is under a specific duty to limit expert evidence to that which is “reasonably required” to resolve the proceedings. This is in contrast to s.13(6) Children and Families Act 2014, which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings justly. It is likely that this this change will be introduced in due course in the COP. It would therefore be wise for COP practitioners to take heed of the three principles identified by Peter Jackson J when considering whether to seek to adduce expert evidence going to veracity. Indeed, it is only like ever to be required where there are real doubts (for instance) as to whether a person has the mental capacity to understand the import of what they saying. An example from the experience of the editors where this has arisen is where a person with a severe learning disability placed in a care home made allegations of sexual abuse but where there were doubts as to whether the words that they are using reflected their own experience or words that they had picked up from contact with other service users or from the media. In that case, the assistance of an expert psychologist was undoubtedly necessary, but these cases are likely to be rare.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]