FPR Part 25 reworked
Changes to the Family Procedure Rules Part 25 introduce measures proposed by the Family Justice Review designed to reduce delay in the family justice system, in part through minimising the use of expert witnesses
Amendments relating to expert witnesses in family proceedings were laid before Parliament on 13 December 2012 and came into force on 31 January 2013. The Family Procedure Rules (FPR) contain a new Part 25 (Experts and Assessors). This has been changed to make the rules governing the admission of expert evidence more restrictive than previously. Under the Civil Procedure Rules (CPR), expert evidence is restricted to that which is reasonably required to resolve the proceedings. Under the FPR, in contrast, expert evidence is restricted to that which is necessary to assist the court. It is the court that decides what is necessary!
The rules contain a list of factors the court is to consider in reaching a decision about whether any particular expert evidence is necessary. These include the impact on the timetable and on the conduct of the proceedings, and the cost of obtaining the expert evidence. Other factors come into play in cases involving children. These include what other expert evidence is available (including any obtained before the start of proceedings) and whether the evidence could be obtained from one of the parties or professionals already involved in the case.
In other changes, the FPR have a specific rule (r25.18) that requires parties to serve court orders affecting an expert witness on the expert within 2 days of the party getting the order. Furthermore, r25.19 creates a duty to inform expert witnesses about the outcome of any hearing and send a copy of any court transcript. We live in hope that those requirements find their way into the CPR sooner rather than later.
The existing monolithic Practice Direction 25A has been split into a collection of six practice directions:
- PD25A Experts – Emergencies and Pre Proceedings Instructions
- PD25B The Duties of an Expert, the Expert’s Report and Arrangements for an Expert to Attend Court
- PD25C 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
- PD25D 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
- PD25E Discussions Between Experts in Family Proceedings
- PD25F Assessors in Family Proceedings
All these changes flow from the recommendations of the Family Justice Review (see Your Witness 67, March 2012). They also fit with the judicial proposals on the modernisation of family justice published by Mr Justice Ryder and endorsed by the Lord Chief Justice, Lord Judge, in the summer of 2012.