Who is responsible for delay?
A new practice direction for the Midlands Circuit is problematic
For entirely laudable reasons, Mr Justice McFarlane, the Family Division Liaison Judge for the Midlands Circuit, issued a new practice direction that will come into effect on 1 May 2011. The aim is to prevent the appointment of expert witnesses if they are unable to provide a report within 3 months. The wording of the practice direction is:
Unacceptable delay is caused to children in litigation when instructions are held in a waiting list for months before the expert is able to begin work. The work of the expert itself forms only a limited part of the time involved. With this in mind the designated Family Judges of the Midlands Region have determined that leave will not be given by the Family Courts of this region for the instruction of psychologists and independent social workers if they are unable to report within three months of the grant of leave. Once this practice is widely followed it is anticipated that experts will routinely become available as their waiting lists fall below three months and are maintained at that level. Accordingly there should be no detrimental impact on availability, just a reduction in waiting lists.
Instructing Solicitors must agree and despatch letters of instruction without delay as directed and requests for extensions of time will engage consideration whether the report should be dispensed with in the light of additional delay. Our Court users, including valued expert witnesses and their administrators are asked to prepare for the operation of this practice by avoiding instructions which involve inordinate waiting periods. From 1 May 2011 our Courts will not permit the instruction of experts unable to report within three months.
Advocates must continue the good practice of providing timetabled proposals for the instruction of named experts. In the transitional period this may be difficult but in these circumstances the Courts will be sympathetic to requests for “permission to instruct a psychologist etc whose identity shall be agreed by the parties and notified to the Court and whose report shall be filed and served within three months of this order”.
It is recognised that in very exceptionally the essential instruction of an expert of international reputation may be impossible within these provisions. With the express permission of the DFJ in an individual case this will be permitted.
According to Sylvie Sarabia of family law specialists Benussi & Co:
“Delay in providing reports cause uncertainty to children and their families involved in Court proceedings in the decision as to where, for example, the children will live. Delayed reports can also lead to important decisions, such as which school a child attends, being put off. There are cases where delays have meant a child remaining in an abusive or dangerous environment for longer than is safe and the risk of physical or other harm being caused is clear.”
Whilst few will doubt the problems that arise when family cases get strung out, one wonders just how much these delays can fairly be placed at the door of the expert witness. It is unlikely that many expert witnesses would take 3 months to actually write a report. Far more likely it is that the expert witness is appointed and then becomes subject to interminable delays in getting full instructions and access to all the information needed to actually write the report. Imposing an arbitrary 90 day timescale will not help if the clock starts running when the expert isn’t in receipt of full and proper instructions.
These problems are exacerbated in single joint expert cases, where as Ms Sarabia says “the instructions to single joint experts often only reach them a long time after the Court directions hearing appointing them.” Instead of setting arbitrary timescales on expert witnesses, the court would be better to follow Ms Sarabia’s thoughts and “in the future insist upon draft letters of instruction to be produced at the directions hearing prior to any formal appointment of an expert so that the letter, if not already agreed, can be agreed at court, to speed up the process and save court time and parties’ costs”. Now that really would help to speed things up a bit.
At the risk of sounding like a broken record, problems in getting timely expert reports will come in large part from the very serious supply problems that exist in some parts of the family court system. These supply problems have arisen from the courts systemic failure properly to handle disputed expert evidence (which is now being tackled by the Law Commission), the singular failure of the Legal Services Commission to address the payment problems that now plague this work, and the serious professional risks that can arise out of forensic work for medics whose professional regulator expressly ignores the legal context surrounding complaints about doctors.