Introduction
12.1This chapter deals with the process by which sufficient evidence is obtained and put before a judge to enable him or her to decide upon the application before them. It deals, in particular, with the different categories of evidence that may be necessary, whether that be factual evidence or expert evidence. It addresses questions relating to hearsay evidence. It then turns, finally, to disclosure, in particular the questions of when and how disclosure is or should be withheld.
12.2The matters covered in this chapter are very wide-ranging, and space precludes detailed discussion of the intricacies of such matters as the law relating to hearsay evidence. The reader is directed to such works as
Phipson on Evidence;
1Sweet & Maxwell, 18th edn, 2015. there is also valuable commentary to be found about the application of the principles to public law proceedings relating to children (which bear certain analogies to proceedings relating to incapacitated adults) in works such as
Hershman and McFarlane: Children Law and Practice.
2Bloomsbury, looseleaf, Section 7.12.3The Case Management Pilot (discussed in chapter 4) has introduced with effect from 1 September 2016 changes to the rules in relation to expert evidence in relation to cases falling within the Pilot. As noted at para 4.102, there is an issue as to whether all new cases fall within the Pilot, or only those allocated to a pathway. For completeness, the ‘old’ rules are noted where relevant in this chapter but it is suggested that practitioners should proceed by reference to any tighter obligation contained in a Pilot rule even in relation to a case falling outside a pathway. A Pilot running from 1 September 2016 has also introduced changes to reports produced at the direction of the court under Mental Capacity Act (MCA) 2005 s49.