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The powers of the court
12.4The provisions of Part 14 of the COPR amplified by Practice Direction (PD) 14, set out a detailed framework by which the court can ensure that (ideally) it has before it that evidence, but only that evidence, which it needs to make the decision(s) it is asked to make. The heart of Part 14 is rule 95, which, as amended in July 2015,
1By the Court of Protection (Amendment) Rules 2015 2007 SI No 548. provides that:
95(1) The court may–
(a)control the evidence by giving directions as to:
(i)the issues on which it requires evidence;(ii)the nature of the evidence which it requires to give those issues; and(iii)the way in which the evidence is to be placed before the court;
(b)use its power under this rule to exclude evidence that would otherwise be admissible;
(c)allow or limit cross-examination; and
(d)admit such evidence, whether written or oral, as it thinks fit; and
(e)admit, accept and act upon such information, whether oral or written, from P, any protected party or any person who lacks competence to give evidence, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule.
12.5The powers granted to judges under this rule are in addition to the general case management powers granted them by COPR rr3.1 and 3.7/COPR rr25 and 85. They are very broad, and reflect the fact that a very wide range of cases come before the Court of Protection, requiring a carefully calibrated approach so as to ensure that (in line with the overriding objective set down in rule 4) evidence is obtained – and limited – in a proportional fashion.
What evidence is required?
12.6The MCA 2005 and COPR are silent as to the evidential requirements that must be satisfied before the court can decide the application(s) before it. There are, though, two obligations of particular importance that are imposed upon the court:
•to act in the best interests of the adult without capacity if the decision before it is one falling within the scope of MCA 2005 s1(5), which requires that an act done or decision made under the MCA 2005 for or on behalf of a person who lacks capacity ‘must be done, or made, in his best interests’;
•to act compatibly with the rights under the European Convention on Human Rights (ECHR) of the adult without capacity (and, to the extent relevant, the rights of the other parties to the application or potentially affected by its decision) (see further chapter 25).
2Human Rights Act (HRA) 1998 s6(1), read together with s6(3). 12.7Determining the nature and scope of the evidence required by the court is a matter that is complicated by the fact that:
The processes of the Court of Protection are essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court, because the function of the court is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests.
3Cheshire West and Cheshire Council v P and M [2011] EWHC 1330 (Fam), [2011] COPLR Con Vol 273 at para 52 per Baker J, endorsed by Sir James Munby P in Re G (An Adult) [2014] EWCOP 1361, [2014] COPLR 416 at para 26.12.8That having been said:
•In all cases, the burden lies upon the party asserting that P lacks capacity to take the material decisions in question to establish that they lack such capacity, on the balance of probabilities.
4MCA 2005 ss1(2) and 2(4). See also PH v A Local Authority and others [2011] EWHC 1704 (Fam), [2012] COPLR 128 at para 16, per Baker J. •Further, it may be necessary that a party prove a particular fact or facts in a way akin to conventional civil litigation:
•In
LBB v JM, BK and CM5[2010] COPLR Con Vol 779. Hedley J held that, where the intervention of the court would engage a potential breach of rights under the ECHR, as is particularly likely in welfare cases, it is incumbent upon the applicant to establish a factual basis upon which the court can be satisfied both that the jurisdiction should be exercised and that any interference is lawful.
•Another (not uncommon) scenario is where it is said that a deputy or attorney has behaved in a way which justifies the intervention of the court; in such instance, it will fall to the party asserting such misconduct to establish it upon the basis of appropriate evidence.
12.9Questions of the resolution of disputed facts are addressed further in chapter 14 below. The resolution of disputes as to capacity is addressed further in the context of the final determination of proceedings at chapter 15 below.
12.10Further, even if a judge is presented with a consent order for approval by parties to an application, the judge is required to consider for themselves as an independent matter whether they can properly endorse that order, and must do so by reference to the evidence before them. In a contested application, one of the first questions for the court will be to determine as precisely as possible what evidence it will require before it can make any final decision(s) (in this regard see also chapter 10, on interim hearings).
12.11A failure to bring proceedings upon the basis of proper evidence can lead to substantial costs consequences. A good example of this is
A Local Authority v HS and others,
6[2013] EWHC 2410 (COP). in which the local authority maintained allegations that P’s brother had sexually abused her but then withdrew them shortly before a hearing was to take place to determine them, on the basis that it accepted that it would not be able to establish them. The local authority applicant was ordered to pay all of the costs claimed by the Official Solicitor on behalf of P and of P’s brother in respect of the steps taken towards the determination of the allegation up to and including the point that the local authority withdrew the allegation. As the court noted: ‘Cogent evidence never existed. It should have been obvious long before these proceedings were commenced … that there was never any cogent evidence’.
7Para 185, per District Judge Eldergill. Those costs amounted (together) to some £88,000. See also in this regard chapter 22 on safeguarding and the Court of Protection.
Admissions
12.12The COPR provide for the making of admissions by a party of the truth of the whole or another part of another party’s case by giving notice in writing.
8COPR r94(1). The court may allow a party to amend or withdraw an admission: COPR r94(2). This provision is, in the authors’ experience, rarely invoked, but it serves as a formal mechanism by which factual matters can be agreed between the parties and advanced to the court as an agreed basis upon which it can then be invited to take a decision. There is no necessary formality to the notice that is required (nor is it necessary that the notice be filed at court), but it is prudent to ensure that, where an admission is being made, express reference is made to the provisions of COPR r94(1) and care is taken to ensure that the precise scope of what is being admitted is defined.
Factual evidence
Overview
12.13Very broadly, most evidence before the court will fall into one of two categories: factual evidence and expert evidence. The latter is discussed at paras 12.54 onwards below. The former constitutes a range of different types of material, the most obvious being evidence from witnesses as to facts relevant to the decision(s) that the court is being asked to take. The different categories of such evidence are discussed below.
Witness statements: formalities and contents
12.14The general rule is that any fact that needs to be proved by the evidence of a witness must be proved by the oral evidence of that witness if there is a final hearing, and by their evidence in writing at any other hearing (or if there is no hearing).
9COPR r96(1). It would appear that a permission form, an application form or an application notice can stand as evidence at a hearing other than a final hearing if verified by a statement of truth.
10COPR r11(3)(a).12.15Almost without exception, and in line with the position that prevails in civil litigation and proceedings involving children, a witness will be required to provide a witness statement in advance of the final hearing, which will stand (if they are to give oral evidence) as their evidence in chief.
11COPR r96(2). In other words, the court will accept their statement (if it complies with the formal requirements discussed below) at a final hearing
as if they had given its contents orally in response to questions from the representative of the party on whose behalf the witness has been called. The corollary of this is that a witness will only be allowed to amplify their statement and/or to give evidence relating to new matters if there is good reason to do so.
12COPR r96(3)–(4). The latitude granted by judges to witnesses to go beyond the contents of their witness statement in oral evidence will depend greatly upon the circumstances of the case, but as a general rule it is prudent to proceed on the cautious basis that the main opportunity that the witness will get to give oral evidence will be in response to questions asked in cross-examination by other parties or to questions asked by the judge.
12.16While permission is not required to serve written evidence with an application (including an interim application) or in response to an application (and indeed, it is in some circumstances mandatory to file such evidence
13For instance, a party served with an application who opposes it or seeks a different order must file a witness statement with their acknowledgment of service containing any evidence upon which they intend to rely: COPR r72(5); an interim application must also be accompanied by evidence if it the evidence not already before the court: COPR r78(2).), as a general rule it is only possible to rely upon written evidence filed subsequently if permission has been given by the court.
14COPR r97(c). As noted above (and discussed further in chapter 9), one of the primary questions for the court as part of its case management functions will be to decide whether to grant such permission; indeed, it is required by the COPR to give directions as to the service of witness statements in advance of the final hearing.
15COPR r99(2). Judges will be astute in deciding whether to grant permission to ensure – insofar as possible – that the written evidence filed only goes to the issues in question.
12.17Witness statements to be used at a final hearing are the subject of particular requirements. They must contain a statement of truth and comply with the requirements of paras 33–50 of PD 14A.
16COPR r100 read together with PD 14A. PD 14B makes detailed provisions relating to statements of truth. While, strictly, witness evidence prepared for other purposes (for instance, at an interim hearing), does not need to comply with these requirements, it is advisable that, wherever practicable, witness evidence is put before the court in a form that can stand, if necessary, at the final hearing.
12.18A sample witness statement is to be found in appendix D below. The most important points to emphasise in relation to the preparation of witness statements are as follows:
•Witness statements should be clearly headed so that it is immediately obvious who is giving the statement, on whose behalf they are giving it, whether it is the first statement that they are making (and, if not, which number it is), and the date upon which it was made.
•While witness statements must be attached to a COP24 form, it is not necessary that they are included in the form itself. The form is unwieldy; unless the statement is very short, it is often much better to prepare the statement as a stand-alone document and attach it to a COP24. If this is done, then it is advisable to include a statement of truth at the end of the stand-alone document as well as in the box contained in the COP24.
•Only evidence that is relevant to the issue(s) before the court should be included. Indeed evidence that is not relevant is strictly not admissible.
17Hollington v Hewthorn and Co Ltd [1943] KB 587 at 594. For a detailed discussion of questions of relevance and admissibility, see Phipson on Evidence chapter 7. For cases on the welfare pathway under the Case Management Pilot (see further para 4.101), specific tasks for the judge at the case management conference include recording the issues in dispute, what has been agreed between the parties, and which issues are not to be the subject of adjudication in the case.
18Case Management Pilot PD para 4.5(a)–(c). Care should be exercised not to include in the witness statement evidence that goes to issues that have been specifically recorded as not being the subject of adjudication, otherwise (at a minimum) judicial criticism will be likely.
•It is important clearly to distinguish in the statement between facts that are directly within the knowledge of the person making the statement and those which are matters of information or belief (and, where the latter, the source for those matters). While it may be quite proper for a witness statement to contain hearsay evidence (ie evidence relating to matters that they have not witnessed directly, discussed further below at para 12.23 below), it is necessary that this is clearly identified.
•Any exhibits should be clearly referenced in the statement by the witness; where the witness gives more than one statement, the numbering of the exhibits should run consecutively throughout, rather than starting again with each statement. The mechanics of exhibiting documents (and other items) to a witness statement are set out at PD 14A paras 20–31.
19Which apply not to just to affidavits, as suggested by their placement in the practice direction, but also to witness statements: see PD 14A para 39. 12.19A common error in statements prepared by public bodies in welfare proceedings is that they do not set out in sufficient detail what is proposed for P, why the proposed option is considered to be in P’s best interests and how, if there is to be a change in the arrangements for P (for instance a move) how any transition is to be managed. It is (often) the case that further investigation in fact reveals that the necessary issues have been considered, but that the analysis underpinning the conclusions set out in the statement is not set out in sufficient detail. A checklist for the preparation of such statements is to be found at appendix E.
12.20By the same token, if any other party wishes to advance an alternative suggestion as to what is in P’s best interests in welfare proceedings (or, indeed, suggestions are being advanced as to P’s best interests in proceedings relating to property and affairs), it is suggested that the maxim of ‘show your workings’ in terms of outlining the reasons why the course of action advanced is in P’s best interests will always serve well.
Witness statements – timing
12.21The court will usually consider, when giving directions as to service of witness statements, the order in which they are to be served.
20COPR r99(3). Where P is a party to the proceedings, and the Official Solicitor acts as their litigation friend, it is usual for the Official Solicitor to serve his evidence last. That evidence (save in the most straightforward of cases) takes a standard form and is not, formally, a witness statement, but simply a statement, as the Official Solicitor does not have direct knowledge of the facts and matters in question. It is prepared by the solicitors instructed on the Official Solicitor’s behalf (or by a lawyer or case-worker in the Official Solicitor’s office if the matter is being handled in-house), but will be signed by the Official Solicitor or one of his or her deputies. It will set out the Official Solicitor’s summary of the relevant background to and the procedural developments in the proceedings, and setting out the Official Solicitor’s views as to P’s best interests in the light of the evidence as it stands as at the time of the statement. Such views are almost invariably expressed as being subject to the caveat that they will be the subject of further consideration at the conclusion of the hearing, to cater for unanticipated developments at the hearing. It is suggested that a broadly similar approach should also be followed where another litigation friend is appointed to act on P’s behalf.
12.22In some circumstances, it is not possible for witness statements to be prepared and served in the way outlined above. There are two potential scenarios:
•The party wishing to rely upon the evidence of the witness may not be able to take the formal steps required to enable the witness to give their statement (for instance, because the witness is unwell at the time). In such circumstances, the party can apply without notice to be permitted to file a witness summary, which is a summary of a) the evidence, if known, which would otherwise be included in a witness statement; or b) if the evidence is not known, the matters about which the party proposes to question the witness.
21COPR r101(1)–(2). Unless the court directs otherwise, the summary must include the name and address of the intended witness, and the summary must be filed within the period in which the statement would have had to be filed.
22COPR r101(3)–(4). The court will then apply, as far as practicable, the provisions relating to the amplification of witness statements discussed at para 12.15 above and also the provisions relating to the service of witness statements (for instance, as to the order in which the summary is to be served).
23COPR r101(5). •It may become clear shortly before a hearing that a witness is able to give evidence necessary to the resolution of the matters before the court, but permission has not previously been granted to the relevant party to rely upon the evidence of the witness. In such circumstances, it is strongly advisable to notify the other parties and the court as soon as possible of the existence of the witness and the nature of the evidence that they will be able to give if permission is granted to rely upon their evidence at the hearing. Depending upon the timing, it may be possible for the question of permission to be determined in advance of the hearing; it may well, however, be necessary for the question to be decided at the outset of the hearing. If it will not be possible for the question of permission to be decided before the hearing, it is advisable that as full a statement as possible is obtained from the witness and served upon the other parties so as to reduce any element of surprise. The statement should also be filed with the court, but it is particularly important to flag up in any list of pre-reading prepared for the judge that permission has not been granted to rely upon the statement; if any party has indicated that they will object to the late service of the statement and/or the giving of evidence by the witness, the judge should not be invited to read the statement prior to the hearing.
Hearsay evidence
12.23Space precludes a detailed discussion of the law relating to hearsay evidence, ie statements made otherwise than by a person while giving oral evidence in the proceedings which are tendered as evidence of the matters stated.
24The statutory definition contained in Civil Evidence Act (CEA) 1995 s1(2)(a). A detailed discussion can be found in chapter 29 of Phipson on Evidence. In contrast to the statutory schemes for both civil and family proceedings, the MCA 2005 and COPR make no express reference to hearsay. However, in
Enfield LBC v SA and others,
25[2010] EWHC 196 (Admin), [2010] COPLR Con Vol 362. McFarlane J held that Court of Protection proceedings under the MCA 2005 fall within the very wide definition of ‘civil proceedings’ under the Civil Evidence Act (CEA) 1995. The CEA 1995 therefore applies to such proceedings, and hearsay evidence is admissible in accordance with the provisions of the CEA 1995.
26SA at paras 29–30.12.24In the light of the decision in SA, the formal position is that:
•If a party wishes to rely upon hearsay evidence, they must give to the other party or parties such formal notice of and (on request) such particulars of or relating to the evidence, as is required to enable them to deal with any matters arising from its being hearsay.
27CEA 1995 s2(1). It would appear that there is no requirement to give notice to rely upon a hearsay statement contained in a document within the agreed bundle (see paras 12.29–12.32 below).
28By analogy with Charnock v Rowan [2012] EWCA Civ 2, [2012] CP Rep 18. In any event, in light of the flexibility granted by COPR r95(d), it is unlikely that a judge would decline to consider hearsay evidence in respect of which formal advance notice had not been given. The judge would, however, no doubt consider the extent to which the other party or parties had been disadvantaged by the fact that the maker of the original statement had not been produced for cross-examination.
•In estimating the weight (if any) to be given to the hearsay evidence the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and, in particular, may have regard to:
•whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
•whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
•whether the evidence involves multiple hearsay;
•whether any person involved had any motive to conceal or misrepresent matters;
•whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
•whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
29CEA 1995 s4. 12.25If a witness is not competent to give evidence it can be received as hearsay. As a result of the 2015 rule changes and the introduction of COPR r95(e), it is now clear that the court can accept hearsay evidence (in the form of ‘information’) from P, any protected party or any person who lacks competence to give evidence.
30See also A County Council v AB and others (Participation of P in Proceedings) [2016] EWCOP 41. Competence to give evidence should not be confused with capacity to conduct proceedings: the test for competence is whether the witness is capable of understanding the nature of an oath and of giving rational testimony.
31Phipson on Evidence, Sweet & Maxwell, 12th edn, 2012, para 9–08. A person may not be able to conduct proceedings and require a litigation friend, but be entirely competent to give evidence.
32See by analogy Milroy v British Telecommunications Plc [2015] EWHC 532 (QB), in which the claimant in personal injury proceedings did not have capacity to litigate those proceedings, but was competent to give evidence as the training he had received and the circumstances under which he had suffered the material injury.12.26However, even if the evidence from a witness who is not competent to give evidence is admissible, as McFarlane J noted in SA:
Admissibility is one thing, and the weight to be attached to any particular piece of hearsay evidence will be a matter for specific evaluation in each individual case. Within that evaluation, the fact that the individual from whom the evidence originates is not a competent witness will no doubt be an important factor, just as it is, in a different context, when the family court has to evaluate what has been said by a very young child.
33SA at para 36.12.27The position in respect of hearing from P is addressed at paras 15.34–15.44.
Affidavits
12.28The COPR and PD 14A both make reference to the giving of evidence by witnesses within the jurisdiction by way of affidavit instead of or in addition to a witness statement.
34COPR rr102–103; PD 14A paras 1–19. The position of witnesses outside England and Wales is considered separately at para 12.42 below. Save for the making of an application for an order for committal to prison for contempt of court,
35COPR r186(1) and PD 21A. there are no rules or practice directions (or other enactments) which require that evidence be given in such a form. A judge may require such to be given, but such is in practice unusual, especially given that proceedings for contempt of court can be brought against a person who makes or causes to be made a false statement in a witness statement verified by a statement of truth without an honest belief in its truth.
36COPR r14.Documentary evidence
12.29PD 14 provides both that a court may give directions requiring the parties to use their best endeavours to agree a bundle or bundles of documents for use at any hearing,
37For welfare cases on the personal welfare pathway under the Case Management Pilot, specific provision is made in relation to the preparation of bundles for the case management hearing, final management hearing and the final hearing (see Case Management Pilot PD paras 4.4(1)(h), 4.6(3) and 4.7(2) respectively and chapter 10). and that all documents contained in such bundle(s) shall be admissible at that hearing as evidence of their contents unless a) the court orders otherwise; or b) a party gives written notice of objection to the admissibility of particular documents.
12.30In practice, it is routine in welfare cases for a direction to be made at an early stage in the proceedings that social services and/or medical records relating to P be provided by the relevant public authorities to the litigation friend appointed to act on behalf of P, most usually the Official Solicitor. It is then not uncommon for parts of those records to be included (whether by the public authority or those acting on behalf of P) in the bundles before the court, and then to form a significant part of the evidence upon which the court will make its decision. It is therefore important that if a family member (say) wishes to object to the admissibility of any or all or those documents that this is made very clear in the preparation of the agreed bundles before the final hearing. Questions of the wider disclosure of such records during the currency of proceedings and (in particular) the circumstances under which such disclosure can be withheld raise difficult issues that are discussed further below at para 12.102.
12.31Another mechanism by which factual information can be put before the court is by the power granted under COPR r107 to the court to direct that a party with access to information which is not reasonably available to another party to direct the former to prepare and file a document recording the information and to serve it on the other party (or parties). Any document prepared pursuant to this rule must include sufficient details of all the facts, tests, experiments and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper interpretation of the information and an assessment of its significance.
38PD 14A para 54. This provision is rarely, if ever, invoked, but can serve a purpose if one party has information which is not reduced to documentary form which can and should properly be provided to the other parties to the court in a document which can be the subject of proper scrutiny. Rule 107 does not, itself, provide that a document produced under the provision is evidence of its contents, but if it is included within the agreed bundle for a hearing, the rule discussed at para 12.29 above will apply.
Notarial acts and instruments
12.32A notarial act or instrument may, without further proof, be received in evidence as duly authenticated in accordance with the requirements of law unless the contrary is proved.
39COPR r105. Such acts or instruments will, in most cases, originate from a foreign country in which notaries play an important role in authenticating documents.
Witness summons
12.33A party can apply for the issue of a witness summons requiring a named individual to attend court and give oral evidence or to produce a document.
40COPR r106(1). Permission to issue such a summons must be sought upon application using a COP9 form (see further paras 10.21 onwards), and the application notice must include particulars of the applicant, the proposed witness, any document which the proposed witness is required to produce, and the grounds upon which the application is made.
41COPR r106(2); PD 14D para 3. A witness summons can also be issued by the court of its own motion, and in
Re NRA, Charles J noted the use of such summons as one of the tools that the court should consider using as part of its ‘investigatory jurisdiction’.
42Re NRA and Others [2015] EWCOP 59, [2015] COPLR 690 at 261, (2015) 18 CCLR 392.A summons to produce documents to the court must either identify the individual document(s) or by reference to a specific category or event, but ‘with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what they are required to do’.
43Tajik Aluminium Plant v Hydo Aluminium AS [2005] EWCA Civ 1218, [2006] 1 WLR 767 at para 28 per Moore-Bick LJ.12.34If the application is granted, the witness summons will then be prepared by the court
44PD 14D para 4. (PD 14D provides for the correction of errors in the name or address of the person to be summoned prior to service). The usual rule is that the party that made it must serve the summons; at the time of service, the party must be offered or paid a) a sum reasonably sufficient to cover his travelling expenses to and from court; and b) compensation for his loss of time.
45COPR r106(6)(a) and (b). Both of these sums are fixed by reference to those payable in criminal cases;
46PD 14D para 10 and the Costs in Criminal Cases (General) Regulations 1986 SI No 1335 (made under the Prosecution of Offenders Act 1985 (as amended)). compensation for ordinary witnesses (ie those who are neither experts nor professionals) is capped at £33.50 for a period of absence not exceeding four hours and £67.00 for a longer period.
47Annex A to the Guide to Allowances under Part V of the Costs in Criminal Cases (General) Regulations 1986, 2007; available at: www.justice.gov.uk/downloads/information-access-rights/foi-disclosure-log/courts-tribunals/foi-76520-annex-a.pdf. The court can also order that a witness be paid such general costs as it considers appropriate.
48COPR r106(7). Although the COPR and the accompanying practice direction (PD 14D) are silent as to who should pay, the silence suggests that payment should be made by the party who sought the application.
12.35In general, a witness summons is only binding if a) it is served more than seven days prior to the date on which the witness is required to attend court; and b) the requirements as to offering or paying compensation have been met.
49COPR r106(3). It is possible, though, for the court to shorten the time period in an appropriate case (although not to dispense with the compensation requirements).
50COPR r106(4).12.36Where the summons is issued solely so as to obtain documents and prove their authenticity, it is suggested that the same practice as is used in civil proceedings would be followed, ie that the summons specify a date for the production of the documents that is in advance of the substantive hearing.
51See Khanna v Lovell White Durrant [1995] 1 WLR 121 and the White Book 2014, Sweet & Maxwell, at para 34.0.3. This power is of little application in terms of documents held by the parties, because of the operation of COPR r107 (see above, para 12.31).
12.37It should be noted, finally, that witness summons are not issued solely to comply reluctant witnesses to attend court, but also as a mechanism by which (for instance) an employer can be forced to allow an employee to attend to give evidence.
12.38The COPR are silent as to the sanctions that follow a failure to comply with a witness summons. It is suggested, however, that, by analogy with the position that prevails in the High Court, such a failure can be punished as a contempt of court: see further chapter 18 below.
Depositions
12.39It is possible for an order to be obtained for a person to be examined on oath before the relevant hearing takes place. Such an order must be sought upon application using a COP9 form (see further paras 10.21 onwards), although it is not necessary that it be made on notice to the other parties.
52COPR r108(1); PD 14B para 9. The deponent can be examined before a circuit judge or a district judge (whether or not nominated as a judge of the Court of Protection), an examiner of the court or such other person as the court appoints,
53COPR r108(3); ‘examiners of the court’ are appointed by the Lord Chancellor: see COPR r111. and the order can require the production of any document which the court considers is necessary for the purposes of the examination.
54COPR r108(4). The court can also order that the party who obtained the order to file a witness statement or witness summary in relation to the evidence to be given by the person be examined.
55COPR r108(7).12.40A deposition that has been ordered under COPR r108 may be put in evidence at a hearing unless the court orders otherwise.
56COPR r113(1). If a party intends to put such a deposition in evidence, they must file notice of their intention to do so with the court and serve it on every other party; absent order to the contrary, they must file such notice at least 14 days before the hearing date.
57COPR r113(2)–(3). The court can require the deponent to attend the hearing and give evidence orally.
58COPR r113(4).12.41Detailed provisions relating to the conduct of depositions to be taken in England and Wales are set out in PD 14B,
59PD 14B paras 1–15. aimed primarily at ensuring the creation of an accurate record of the questions put and the answers given, and also at setting out the consequences of a failure of a deponent to attend the examination or a refusal to be sworn, answer any lawful question or produce any document. They are not addressed further here because the process is so rarely invoked before the Court of Protection.
Witnesses outside the jurisdiction
12.42The COPR and PD 14A contain detailed provisions relating to the obtaining of evidence from witnesses outside England and Wales; they also (along with PD 14B) contain provisions relating to the taking of depositions outside England and Wales. In summary:
•a person may make an affidavit outside England and Wales in the same (limited) circumstances as provided for within England and Wales, or as in accordance with the law in the place where they make the affidavit;
60COPR r104. •the procedure for taking evidence outside the jurisdiction will vary depending upon whether or not the person in question is in an EU member state;
61COPR rr115–116; PD 14B paras 16–33. If the person is within an EU member state, the Taking of Evidence Regulation (Council Regulation (EC) 1206/2001) applies. •the same procedural requirements apply in relation to the putting before the court of evidence obtained outside the jurisdiction as do in relation to depositions taken from witnesses in England and Wales.
62COPR r113. 12.43Where a witness is outside the jurisdiction, it is more likely that steps will be taken to enable them to give any oral evidence required by way of video link, as provided for at COPR r98, and discussed further at paras 15.53–15.57.
Documents held by the police
12.44Where the police force of a particular area is not a party to the proceedings, but where the court agrees that documents are required from the police, the police normally require that any order be made in terms that a) are directed to the chief constable of the force in question; b) invite, rather than require, the production of documents; and c) include the full name and date of birth of the person to whom they relate. Many police forces have in place local protocols with local authorities for the disclosure of documents in proceedings relating to children; it is usually easiest if such protocols (modified as necessary) are adopted in proceedings relating to incapacitated adults. A model order can be found at www.courtofprotectionhandbook.com/precedents.
Section 49 reports
12.45The court has the power under MCA 2005 s49 to call for a report in respect of such matters relating to P as it may direct from:
•the Public Guardian;
•a Court of Protection Visitor, appointed by the Lord Chancellor to one of two panels, Special Visitors and General Visitors, the former requiring a medical qualification and special knowledge of and experience in cases of impairment of or disturbance in the functioning of the mind or brain;
63MCA 2005 s61(2). •a local authority or NHS body (such report to be produced by one of its officers or employees or such other person other than that the Public Guardian or a Court of Protection Visitor as the authority/NHS body considers appropriate).
12.46There are specific provisions in MCA 2005 s49 and COPR r117 relating to the powers of those charged with producing such reports (which are normally, but not necessarily, provided in writing
64MCA 2005 s49(6). The model order attached to Pilot PD14E (see further below) provides alternative wording for oral and written reports: see para 4.). In summary:
•The Public Guardian or a Court of Protection Visitor is entitled, at all reasonable times, to examine and take copies of any health record, any record of or held by a local authority and compiled in connection with a social services function, and any record held by a person registered under Care Standards Act 2000 Part 2 or Health and Social Care Act 2008 Part 1 Chapter 2 (broadly, records held by those managing private residential and nursing homes) relating to P.
65MCA 2005 s49(7). •Any person compiling a report can inspect and take copies of any document in the court records, unless the court orders to the contrary (or orders that they may only have access to the information on an edited basis).
66COPR r117(5) and (7). •A Public Guardian or Court of Protection Visitor can interview P in private for purposes of producing a report.
67MCA 2005 s49(8). •A Special Visitor can, if the court directs, carry out a private medical, psychiatric or psychological examination of P’s capacity and condition.
68MCA 2005 s49(9). •An officer or an employee of a local authority or NHS body (or person reporting on their behalf) is expected to contact or seek to interview such persons as he thinks appropriate or the court directs, but is not granted any specific power to interview or examine P for purposes of producing a report.
69COPR r117(3)(a). 12.47Section 49 reports, especially those produced by Court of Protection Visitors, bear a strong resemblance to expert reports, in that they will include both discussion of factual matters and also opinions reflecting the expertise of the maker of the reports. Both those providing reports under MCA 2005 s49 and experts reporting to the court owe a duty to the court (rather than to the parties) to assist on the matters within their expertise.
70COPR r117(2) (reports under MCA 2005 s49); COPR r122 (experts). The maker of a section 49 report must also give a statement of truth that relates both to the facts contained within their report and the expression of their professional opinions: Pilot PD 14E para 23(e). However, even though many section 49 reports are in substance identical to expert reports, they are treated distinctly to such reports for purposes of the COPR,
71By COPR r119(b), an expert does not include any person instructed to make a report under MCA 2005 s49. and therefore conceptually occupy a somewhat curious position in the conventional categorisation of evidence.
12.48In many circumstances, the power exercisable under MCA 2005 s49 serves as an effective route by which the court can obtain independent evidence as to matters relevant to the application, and thus as an alternative to the grant of permission to the parties to instruct (jointly or separately) an expert to give evidence. For welfare cases falling within the Case Management Pilot the court must actively consider whether such a report
72Or from a COPR Pr1.2 representative (see further chapter 11). could achieve a better result than an expert.
73Case Management Pilot PD para 4.5(m).12.49There is one substantial advantage to the parties in the obtaining of such a report, namely that the MCA 2005 and the COPR make no express provision for the payment of any fees. This is in contrast to the position in relation to experts where the default position is that the instructing parties are jointly and severally liable for the payment of the expert’s fees and expenses
74COPR r131(5). (see further para 12.79 below). In practice, this means that the costs fall upon the body required to produce the report (in the case of Special and General Visitors, they are remunerated for their work by Lord Chancellor, including for the provision of section 49 reports
75MCA 2005 s61(4).).
12.50In part because of concerns expressed by NHS bodies at the burdens being placed upon them by orders to provide section 49 reports (especially in relation to individuals with whom they had had no previous contact),
76See RS v LCC & Ors [2015] EWCOP 56, in which District Judge Bellamy emphasised that there is no provision is made within MCA 2005 s49 for fees or expenses incurred by the relevant public bodies, but that ‘[w]hat the court will do is to carefully consider resources and listen to any argument from the [public body] particularly in relation to the time for compliance and the scope of the work to be undertaken. That would appear to be both a reasonable and proportionate approach.’ and in part also because of practical difficulties that were being encountered on a regular basis in obtaining timely and appropriately detailed section 49 reports from public bodies, a Pilot was introduced on 1 September 2016 in relation to such reports. The Pilot, which runs until 31 August 2017, applies to all cases where a section 49 report is ordered, whether on application, or on the court’s own initiative.
77Section 49 Reports Pilot PD para 1.3.12.51The section 49 Pilot contains, in Pilot PD14E, detailed guidance both as to when a section 49 report is likely to be ordered, and also as to the contents of the report. It also contains details as to the steps that should be taken by a party before applying for an order for a section 49 report directed against a public body, in particular as to the identification of a suitable person (‘the senior officer’) at the local authority or NHS body in question who will be in a position to receive the order and take action upon it. There is also a detailed model order attached to the Pilot PD, which includes specific provisions for such matters as the contents of the report, persons to whom it is likely to be disclosed and access to records.
12.52For purposes of the Pilot (and, indeed, as we previously recommended in the first edition of the book as good practice) the rule of thumb will therefore be to prepare as if an expert is being instructed (see further below paras 12.79 onwards). In other words:
•If the report is to be provided by a public body and requires any specific expertise (for instance the preparation of a report addressing P’s capacity), an individual should, if possible, be identified at the relevant body with that expertise; alternatively, a particular category of individual (for instance a psychologist, or psychiatrist). Whilst MCA 2005 s49 provides for a report to be provided by the public body, rather than by a specific person within the public body,
78And Pilot PD14E provides for how the public body is to nominate the person to prepare the report: paras 11–12. if an appropriate person can be identified and agreed with the ‘senior officer’ then this will speed matters up considerably as regards the preparation of the report;
•A realistic time-frame should be identified within which the report can be prepared;
•A draft letter of instruction should be prepared for consideration by the court,
79This is a specific requirement: Pilot PD14E para 8. which contains a summary of the relevant background matters (including, in many cases, relevant documentation); and a summary of the relevant legal tests to apply (including not just the provisions of the MCA 2005 but any relevant cases). It should also ask detailed and specific questions. This does not apply just to situations where the report is being sought of a public body, but also of a Court of Protection Visitor: experience has taught that both General and Special Visitors can on occasion be asked to report in extremely vague terms, producing in consequence extremely vague – and unhelpful – reports;
12.53A report made in response to an order under MCA 2005 s49 is made to the court, rather than to the parties. It will then be sent by the court to the parties; it can also be sent to such other persons as the court may direct.
80COPR r117(4). Paragraph 12 of the model order attached to Pilot PD14E directs the minds both of the parties and the court to identifying whom the report is to be disclosed to other than the parties. A party (but not another person to whom the report has been sent) can apply for permission to put written questions to the maker of the report.
81COPR r118(1). Such questions must be directed via the court, which will make such amendments as it sees fit; the court will then send the replies received to the parties and such other person as it may direct.
82COPR r118(2)–(3).Expert evidence
Overview
12.54More than in many other types of proceedings, judges sitting in the Court of Protection will often require assistance from suitably qualified individuals as to such matters as:
•whether P has or lacks capacity to take the decision(s) in question; and
•what course of action is in P’s physical and/or psychological best interests, especially if there are specific clinical or social work concerns.
12.55That evidence will go beyond evidence of fact and, indeed, it will be of value to the court predominantly insofar as it constitutes evidence of opinion based upon the expertise of the individual in question. As such evidence would not otherwise be admissible, the MCA 2005 and COPR Part 15 contain provisions enabling such evidence can be put before the court in a proportionate fashion.
83Space precludes a detailed discussion of the law relating to expert evidence; the reader is referred to Phipson on Evidence at para 33-09 onwards. COPR Part 15 is accompanied by a practice direction (PD 15A); this is very much less detailed than the suite of practice directions that are now in force accompanying the Family Procedure Rules (FPR) 2010 SI No 2955 Part 25, the equivalent provisions in proceedings relating to children. At present, there is no immediate prospect of PD15A being amended to introduce a similar degree of detail. The Case Management Pilot has substituted a new Pilot Part 15 governing expert evidence which for the most part is identical to the ‘old’ Part 15 but contains a number of areas in which obligations are tightened highlighted below.
12.56Slightly oddly, neither the MCA 2005 nor the COPR provide any definition of an ‘expert’,
84Although, as noted above, it cannot be a person who gives a report under the provisions of MCA 2005 s49. but it is suggested that for these purposes an ‘expert’ is a person qualified to express an expert opinion upon a relevant matter by virtue of their qualifications or experience upon such matters. By analogy, Civil Evidence Act (CEA) 1972 s3 provides that where a person is called as a witness in any civil proceedings, the person’s opinion on any relevant matter on which he or she is qualified to give expert evidence shall be admissible in evidence, and that ‘a relevant matter’ includes an issue in the proceedings in question. It is suggested that proceedings before the Court of Protection are ‘civil proceedings’ for these purposes (by analogy with
Enfield LBC v SA and others85[2010] EWHC 196 (Admin), [2010] COPLR Con Vol 362, discussing the CEA 1995, which contains the same definition of ‘civil proceedings’. See CEA 1972 s3; compare CEA 1995 s11.).
12.57It is further suggested that an expert is a person who must have a degree of independence from P,
86See PD 15A paras 3–4, discussed further below. such that a family member could not properly qualify as an expert for these purposes. In the ordinary run of events, it would be unusual for a treating clinician (or a social worker involved with P’s case) to be asked to provide expert evidence falling within the scope of COPR Part 15. However, in
O-M and Others v The Local Authority and Others,
87[2009] EWCA Civ 1405, [2010] 2 FLR 58. See also Hershman and McFarlane: children law and practice, at para 3060-1. the Court of Appeal held that there is no blanket rule which prevents, in an appropriate case, a treating doctor becoming a jointly instructed expert in public law proceedings relating to children. It is suggested that there is no reason in principle why the same approach could not apply in proceedings in relation to adults.
12.58In any event, ‘specialist’ professional witnesses employed or acting on behalf of a public body party to proceedings often give evidence that contains both evidence of fact and what would in layperson’s terms be considered to be expert opinion evidence. For instance, a social worker will very often both relate events that they have witnessed directly (or have knowledge of from their reading of social services records) and then also express their professional opinion as to where P’s best interests may lie on the basis of their perception of those events. That opinion may well be due (and be given) significant weight by the court. As noted extra-judicially by Sir James Munby P (in comments relating to care proceedings but of equal relevance to proceedings under the MCA 2005):
Social workers may not be experts for the purposes of FPR Part 25 [the equivalent of COPR Part 15], but that does not mean that they are not experts in every other sense of the word. They are, and we must recognise them and treat them as such.
88Sir James Munby P, ‘View from the President’s Chambers (3) The process of reform: expert evidence’ [2013] Fam Law 816.12.59As discussed below, therefore, where there is evidence before the court from a witness such as a social worker on behalf of a public authority, this will factor into the question of whether expert evidence falling within the scope of COPR Part 15 is in fact required.
12.60It is also vital as a preliminary point to remember in respect of all expert evidence (both that falling within the scope of Part 15 and that of the quasi-expert nature discussed immediately above) that:
•where the opinion of an expert is based upon the report of facts, those facts, unless within the expert’s own knowledge, must be proved independently;
•an expert may (in an appropriate case) give evidence upon ‘ultimate questions’ going to factual matters, for instance as to the accuracy or truthfulness of a witness, but the final decision remains that for the judge;
89See, by analogy, Re M and R [1996] 2 FLR 195 at 205–213 per Butler-Sloss LJ and Re M (sexual abuse allegations: interviewing techniques) [1999] 2 FLR 92 per Sir Stephen Brown P. See also the discussion in Hershman and McFarlane: children law and practice, at para 3056. •likewise, the ‘ultimate’ questions of whether P has capacity and as to what is in their best interests are matters for the court.
90CC v KK and STCC [2012] EWHC 2136 (COP), [2012] COPLR 627 at para 24 per Baker J. 12.61In other words, and as Charles J observed in
A County Council v K, D and L,
91[2005] EWHC 144 (Fam), [2005] 1 FLR 851, at paras 39 and 44. This case related to an application for a care order under the Children Act 1989, but its principles were held to be equally applicable to proceedings under the MCA 2005 by Baker J in CC v KK and STCC [2012] EWHC 2136 (COP), [2012] COPLR 627 at para 24. after a detailed review of the authorities:
… it is important to remember (i) that the roles of the court and the expert are distinct; and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence … the judge must always remember that he or she is the person who makes the final decision.
12.62Allied to this is the fact that the judge is not limited in their determination even of questions upon which expert evidence might be thought to be of particular weight solely to consideration of that evidence. In particular, it is clear that capacity is a question ultimately to be determined by the court, and it must do so on the basis of:
all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important.
92PH v A Local Authority and others [2011] EWHC 1704 (Fam), [2012] COPLR 128 at para 16(xiii) per Baker J.12.63A corollary of the matters set out above is that the judge is entitled to depart from the expert evidence put before them, as happened in the
CC case referred to above, where Baker J held in the face of all the professional and expert evidence before him that P had the capacity to decide where she wished to reside, largely (it appears) on the basis of his own assessment of P when she appeared before him. By analogy with the position that prevails in relation to children, it is suggested that a departure where it concerns the potential level of risk to the welfare of P must be accompanied by appropriately detailed reasons.
93See Re B (care: expert witnesses) [1996] 1 FLR 667 and Hershman and McFarlane: children law and practice at para 3056.Permission
12.64Although it is not necessary to obtain permission to file expert evidence as to capacity and/or best interests with the initial application to the court,
94COPR Pr120(1)(a)–(b)/COPR r120(1)(a)–(b). the court’s permission must be obtained before filing any subsequent expert evidence
95COPR Pr123(1)/COPR r123(1). (and evidence filed with the application can only be relied upon to the extent and for the purposes that the court allows).
96COPR Pr120(2)/COPR r120(2).12.65The requirement to obtain permission is an important tool in the court’s case management armoury. In addition to its general obligation to have regard to the general requirement to deal with cases in a proportionate fashion,
97COPR Pr1.1(c)/COPR r3(3)(c). the court is also under a specific duty to limit expert evidence to that which is reasonably required to resolve the proceedings.
98COPR Pr121/COPR r121. This duty extends not just to requiring careful consideration of whether expert evidence is required at all,
99See City of Westminster v FS (unreported, 9 September 2009) at paras 12–16, per HHJ Horowitz QC (consideration of whether first instance judge erred in refusing permission to the Official Solicitor to instruct an independent social work expert). but also, where possible, requiring expert evidence upon a particular issue to be dealt with by a single expert.
100COPR Pr130(1)/COPR r130(1) and PD 15A para 1. In guidance sanctioned by the President of the Court of Protection, the provisions of the COPR and PD 15A were amplified to make clear that: ‘Unnecessary expert assessments must be avoided. It will be rare indeed for the court to sanction the instruction of more than one expert to advise in relation to the same issue’.
101Guidance in cases involving protected parties in which the Official Solicitor is being invited to act as guardian ad litem or litigation friend, 2010, available at: www.familylaw.co.uk/system/uploads/attachments/0001/4515/Guidance_in_cases_involving_the_Official_Solicitor_-_December_2010.pdf.12.66It is perhaps worth noting that there are advantages to the instruction of single joint experts other than those of proportionality and cost-saving. As Ryder J (as he then was) noted after a review of the authorities in
JG (a child) v Legal Services Commission and others102[2013] EWHC 804 (Admin), [2013] 2 FLR 1174. This decision was reversed on appeal: [2014] EWCA Civ 656 but these dicta remain valid. (in the context of a discussion of the principle of the equal apportionment of the costs of joint expert evidence (see further para 12.77 below)):
47. There are sound reasons, recognised in the decided cases, why there should be apportionment of costs in cases where there is joint expert evidence. Such evidence will:
(a)be something which each party has an interest in making available to the court …;
(b)be something from which each party has the potential to benefit (whether or not they ultimately do so) …; and
(c)inform the positions of the parties …
48. These points do not apply to evidence obtained, and paid for, on a single party’s behalf. In
Lambeth,
103Lambeth LBC v S, C, V and J (by his guardian); Legal Services Commission (intervening) [2005] EWHC 776 (Fam), [2005] 2 FLR 1171. the court approved (at para [59](viii)) the comment of Bodey J in
Calderdale104Calderdale MBC v S and the Legal Services Commission [2004] EWHC 2529 (Fam), [2005] 1 FLR 751. (at para [37](e)) in relation to the cost of a joint report prepared for care proceedings brought by a local authority that:
‘… there is much force in the Local Authority’s point that parents need to know that reports which may prove to have a “preponderant influence” (per Munby J at paragraph 113(ii) of Re L) are not being prepared at the sole expense of the Local Authority – in which event they may feel that the Local Authority calls the tune.’
12.67These comments were made in the context of a discussion of expert evidence in private law proceedings concerning a child, but it is suggested that they are equally applicable in proceedings under the MCA 2005.
12.68For cases on the Case Management Pilot, the provisions in relation to experts have been modified so as to make the test for permission more stringent.
105Note that PD15A, the practice direction accompanying Part 15, has not been amended, so para 1 is incorrect in respect of the test applicable under the Case Management Pilot. The court’s duty is to restrict expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings, and the court may only give permission to file or adduce expert evidence if it is satisfied that it is both necessary and cannot otherwise be provided.
106COPR Pr121. In deciding whether to give permission to file or adduce expert evidence, the court must have specific regard to (a) the issues to which the expert evidence would relate; (b) the questions which the expert would answer; (c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings; (d) any failure to comply with any direction of the court about expert evidence; and (e) the cost of the expert evidence.
107COPR Pr123(2A). Additionally, the Case Management Pilot Practice Direction (PD) provides that for cases on the welfare pathway, the court must at the case management hearing (see further para 10.19) actively consider whether a section 49 report
108Or from a COPR Pr1.2 representative (see further chapter 11). could achieve a better result than the use of an expert.
109Case Management Pilot PD para 4.5(m).12.69The more stringent test to be applied under the Case Management Pilot echoes that to be found in the Family Procedure Rules.
110FPR r25.1 as amended by the Family Procedure (Amendment) (No 5) Rules 2012 SI No 3061. ‘Necessity’ was interpreted in the context of those rules in
Re H-L (A Child) (Expert Evidence: Test for Permission)111[2013] EWCA Civ 655, [2014] 1 WLR 1160, at para 3 per Sir James Munby P; see also Sir James Munby P, ‘View from the President’s Chambers (3) The process of reform: expert evidence’ [2013] Fam Law 816. as having ‘the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable’.
112[2013] EWCA Civ 5, [2013] 1 FLR 1250, at para 30 per Sir James Munby P12.70As set out at paras 4.101–4.103 above, it is at the time of writing not clear whether cases falling outside one of the pathways also fall outside the scope of the Case Management Pilot. However, the authors strongly suggest that practitioners should proceed on the basis that it will be necessary to satisfy the stricter test in all cases so as to avoid the potential for unhelpful and potentially costly arguments as to which test to apply.
12.71A further hurdle to the obtaining of expert evidence in cases in which one or more parties are in receipt of public funding is the increasing reluctance of the Legal Aid Agency (LAA) to fund expert evidence (whether at the particular rate sought by the expert, or indeed at all). That the LAA has the power to refuse all or part of the instruction, even if permission has been granted by the court was confirmed by Collins J in
R (T) v Legal Aid Agency.
113[2013] EWHC 960 (Admin), [2013] Fam Law 805.12.72It is strongly advisable that (in line with the approach that applies in family proceedings
114A Local Authority v S and others [2012] EWHC 1442 (Fam), [2012] 1 WLR 3098 at para 45 per Sir Nicholas Wall P.):
•Where the court takes the view that the expert’s report is required (under whatever test is applicable) for the resolution of the case, it should say so and should give reasons (and should do so even if the order is a consent order being endorsed by the court, as it is still a judicial decision).
•While the reasons need not be lengthy or elaborate, they must, however, explain to anyone reading them why the decision-maker has reached the conclusion he or she has, particularly if the expert’s rates exceed the maximum rates ordinarily allowable. This can be done by way of preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge’s approval. It is suggested that the preamble or judgment should include (and hence the material put to the court must indicate clearly):
■what relevant papers it has read;
■the reasons why it considers that the expert evidence is required to resolve proceedings, which should include the reasons why the evidence would not otherwise be available to it as part of the proceedings (for instance, from a social worker or a treating clinician who has given evidence on behalf of a public body);
■the reasons why the volume of work is required, if it is a particularly complex report;
■(if one or more parties is publicly funded) the reasons for why there is any need to exceed the maximum rates usually allowable by the LAA; and
■the reasons why there is any departure from: i) the principle that the costs of a single joint expert will be shared equally between the instructing parties, particularly if this has the effect of placing a disproportionately high cost burden on a party or parties in receipt of public funding (this should include a robust scrutiny of the means of any party claiming to be unable to afford the cost of the instruction); or ii) the principle that the instructing parties are to be jointly and severally liable for the costs of single joint expert.
12.73The last point above requires some amplification because a question that arises relatively often is whether all the parties to proceedings need to join in the instruction of an expert and, if they do not, what, if any a) right do they have to have input into the instruction; and b) obligation do they have to pay the costs of the expert report?
12.74The starting point in respect of both is simple: only a party who wishes to submit expert evidence is an ‘instructing party’;
115COPR Pr130(2)/COPR r130(2). only such a party has the right (but not the duty) to give instructions to the expert;
116COPR Pr131(1)/COPR r131(1). and the status of instructing party carries with it the obligation to meet jointly and severally the expert’s fees and expenses.
117COPR Pr131(5)/COPR r131(5). The Court of Protection cannot force a party to join in the instructions; if a party refuses to do so, it is suggested that this should be recorded on the face of the directions giving permission to other party or parties to instruct the expert in question.
12.75Conversely, especially where one party is a litigant in person and/or is of limited means, the argument is often run that the letter of instruction should be circulated to the relevant party for their input and comment, but that they should not then be required to meet any part of the costs of the report. There is undoubtedly a pragmatic attraction to this, not least as written questions can be put to an expert by any party, not just an instructing party, and the presumption is that the costs of producing the replies will in the first instance be met by the instructing party or parties.
118COPR r125(1) and (7). See further para 12.90 below. It may therefore be thought easier to ensure that the expert is asked to consider all matters compendiously, rather than having to respond to subsequent questions by a party who has not taken part in the instruction. Care needs to be exercised, however, both by the parties and the court, if this course is adopted. This is in part because it offends against the principle of the joint apportionment of costs which is enshrined in COPR r125(7). It is also, pragmatically, a course which is likely to lead to substantial problems if the LAA consider that there has been any degree of ‘loading’ of the costs of an expert report upon a public funding certificate for any party.
12.76However, the position may now be somewhat more flexible at least where one (or more) parties is of limited means and one party is publicly funded following the decision in
JG v Lord Chancellor and others.
119[2014] EWCA Civ 656, [2014] 2 FLR 1218. This case was decided in the context of a private law dispute involving a child, but the central principles are equally applicable before the Court of Protection (see also the discussion of this case at paras 6.86 onwards). In this case, the Court of Appeal made a number of general observations, including that:
•no party could be compelled to join in instructing an expert (under the FPR – this also applies to the COPR);
•the involvement of other parties will not necessarily convert an expert instructed on behalf of one party into a single joint expert;
•there are good practical reasons to be cautious about treating an expert as a joint expert, as it would be undesirable for non-instructing parties to be deterred from contributing to an expert’s instruction, and thus from providing useful information to an expert, for fear they will be treated as a joint expert;
•if, on proper analysis, the expert is a joint expert, the possible grounds for departing from the principle of equal apportionment could be a) impecuniosity, b) the need to avoid a breach of the ECHR
120A failure by the court to allow expert evidence can be a violation of Article 8 ECHR (see Elsholz v Germany (2002) 34 EHRR 58). and c) a ‘very exceptional case’. If it is established that a lack of an expert report would breach an individual’s rights under the ECHR, there was no need to consider exceptionality as an additional requirement.
12.77It is important to remember that the pressure of work means that a judge at a case management hearing may not have time to master the details of the documents in the case. This means that it is particularly important to flag up all relevant matters clearly (and succinctly) for the judge, ideally in the position statement filed in advance of the hearing (discussed further at paras 10.37 onwards).
12.78Wherever possible, the court being invited to grant permission to instruct an expert should be asked to give permission to instruct a specific expert, rather than a category of expert. In other words, the identity of the expert together with the professional qualifications should be made clear to the judge at the time that permission is sought, rather than permission being sought to rely upon (say) a consultant psychiatrist to report upon P’s capacity in one or more domains. This has two advantages:
•The court can make clear in its reasons for the grant of permission that it has considered the value that the specific expert proposed can add (assuming that such expert is endorsed by the court; if the expert is not, then appropriate steps can then be directed to put forward a suitable alternative for judicial endorsement).
•Where more than one party is to be involved in the instruction of the expert, the order appointing that expert will name them. In the authors’ experience, while there is a mechanism in the COPR for the resolution by the court of disputes as to the identity of the expert between joint instructing parties,
121COPR Pr130(3)/COPR r130(3) providing that the court can either select the expert from a list prepared or identified by the instructing parties or direct the manner by which the expert is to be selected. leaving matters open in the order can give rise to unhelpful and time-consuming debates subsequently that can be avoided by ensuring that any such discussions take place prior to the making of the order.
Instructing the expert
12.79An expert must be instructed before they can report. In other words, they must be provided with:
•a summary of the background to the case;
•a summary of the relevant legal provisions (and of any relevant case-law); and
•relevant documentation.
12.80The questions upon which their opinion is sought must also be set out with clarity. A sample letter of instruction is included at appendix D below, but particular points to emphasise are that:
•As noted above, the presumption is that expert evidence will be provided by way of an expert jointly instructed by all those parties who wish to submit expert evidence upon a particular issue or issues. In such circumstances, and while the COPR provide for separate instructions to be given by the instructing parties to the expert,
122COPR r131(2)/COPR r131(2). courts are in practice astute to seek to ensure that only one letter of instruction is sent, and will use their general case management powers to bring about (if all possible) one letter, agreed, if possible between the instructing parties. This means, in practice, that the solicitors for one of the parties should take the lead in drafting the letter and then circulate it to the other instructing parties for comment. Wherever the Official Solicitor is instructed as P’s litigation friend and is participating in the instruction, it is conventional that the solicitors instructed by the Official Solicitor take on the task of producing the first draft. If agreement cannot be reached as to the terms of the letter, it is almost invariably quicker if rival drafts (with the differences clearly marked) are provided in writing along with submissions to the merits of the different drafts to the judge who made the original order granting permission for the judge to make the final decision as to the terms of the letter, rather that engaging in protracted rounds of correspondence. Under the Case Management Pilot COPR Pr131(1A) provides, expressly, that, where instructions are to be contained in a jointly agreed letter, in default of agreement the instructions may be determined by the court on the written request of any instructing party copied to the other instructing parties.
•Where an expert is jointly instructed, the expert must be reminded that any communications that they have with one instructing party should be copied to the others; there is a real risk, otherwise, that the independence of the expert will (even if only apparently) be compromised.
123See in this regard SMBC v WMP [2011] EWHC B13 (COP), (2011) 14 CCLR 413, [2011] COPLR Con Vol 1177 at para 57(vii) per HHJ Cardinal (discussions between the Official Solicitor’s solicitor and the expert). •Thought must be given as to the documentation that it is necessary that the expert reviews in order to give their report, and the mechanics by which the expert can review that documentation. In this regard two considerations arise, in particular:
•The expert may well not need to see the entirety of files held upon P by relevant public bodies, but must be entitled to inspect and/or be provided with copies of sufficient documents in order to be able to reach their conclusions.
•It is quite possible that the expert will need to see documents relating to P (for instance, their social services files) to which the other parties in the proceedings (most obviously family members) may well not have had sight of and which there are legitimate reasons to suggest the other parties should not see. In
Re L (care assessment: fair trial), Munby J (as he then was) held in relation to care proceedings that there might be a breach of Article 6 ECHR (right to a fair trial) where a jointly instructed or other sole expert’s report was ‘likely to have a preponderant influence on the assessment of the facts’ by the court, if a litigant were denied the opportunity, before the expert produced his report, a) to examine and comment on the documents being considered by the expert and b) to cross-examine witnesses interviewed by the expert and on whose evidence the report was based, and hence to participate effectively in the process by which the report was produced.
124[2002] EWHC 1379 (Fam), at paras 113–118, applying Mantovanelli v France (App No 21497/93) (1997) 24 EHRR 370. It is suggested that the same principle applies in relation to proceedings under the MCA 2005; this does not necessarily mean that an expert cannot have sight of documents withheld from other parties – rather, it means that consideration must be given to the basis upon which those documents are withheld both by the party wishing to withhold those documents and the court. These difficult issues are examined further at paras 12.102 onwards below.
•Arrangements must be made for the expert to be able to visit P (which will, in the majority of cases, be necessary for them to be able to form any proper conclusion as to their capacity and/or best interests
125As an independent consultant neuro-psychiatric expert noted in Wandsworth CCG v IA and TA [2014] EWHC 990 (COP): ‘assessment of capacity based on case notes is of necessity a relatively inadequate substitution for the complex assessments that occurs in a clinical interview’ (IA at para 43).), and interview any individuals such as carers or family members whom the expert considers necessary in order to be able to produce a sufficiently rounded picture. If an expert is unable to obtain access to see P because of the actions of a family member, this is something that should be raised with the court at the earliest possible opportunity so that – if appropriate – steps can be taken to consider the making of injunctions (and, ultimately, initiating proceedings for contempt of court).
•While the court is likely to have indicated in the order granting permission the matters to be covered in the report,
126COPR Pr126(1)/COPR r126(1) provides that the court may give directions as to the matters to be covered in such a report. it is unlikely that the order will set down the questions in detail (nor, in the ordinary run of events, is it likely that the judge making the order will have had sight of the letter of instruction before it is sent out). It is therefore important that care is taken to formulate the questions so as to direct the expert’s attention to answering the issues that actually fall for consideration in the case. In the authors’ experience, unclear reports are very frequently the result of unclear questions having been asked in the first place (and it is also difficult to ‘salvage’ such an unclear report by way of questions asked upon receipt of the report, discussed further at para 12.86 below).
•The expert should be reminded that they should exercise extreme care before expressing any provisional views to P: in
SC v BS and A Local Authority,
127[2012] COPLR 567. the expert was criticised for having given an indication to P that he thought she had capacity in the material domains without having read the very extensive records. As Baker J noted: ‘Although his comments to her were hedged with qualifications, it was highly probable that [P]’s hopes were raised that she would shortly be allowed to leave her current accommodation.’
128Para 39. No expert should give a patient a ‘provisional’ view of the patient’s capacity without reading the patient’s history.
•The expert should be reminded that they have the right to ask the court for directions to assist them in carrying out their functions as an expert.
129COPR Pr129(1)/COPR r129(1). Any such application must (in the absence of direction to the contrary) be provided in advance to the instructing party and to the other parties to the proceedings. While in the first instance, an expert would usually be expected to look to the representatives of the instructing parties to assist them to overcome any logistical difficulties, experts must, themselves, take responsibility for ensuring that they are satisfied that they have obtained the information necessary to report to the court. In
SMBC v WMP, HHJ Cardinal indicated that, as a matter of good practice: ‘An expert … ought … to seek clarifications and raise questions under r129 Court of Protection Rules 2007 before completing a report referring to lacunae in the information before him.’
130SMBC v WMP [2011] EWHC B13 (COP), [2011] COPLR Con Vol 1177, (2011) 14 CCLR 413, at para 57(i). •Instructions to an expert are not privileged against disclosure:
131COPR r126(5). in other words, nothing should be put to an expert in a letter of instruction which cannot properly be seen by all the other parties to the proceedings.
The duties upon an expert
12.81The expert must assist the court on the matters within his or her expertise.
132COPR Pr122/COPR r122. This encompasses two equally important aspects:
•No matter who the expert is instructed by or who pays them, the expert does not owe their duty to any party or parties, but to the court (and, to that end, their report is to be addressed to the court, rather than to any party from whom they have received their instructions
133PD 15A para 8.). An expert whose report lacks objectivity may themselves be at risk not just of having all or part of their fees disallowed, but may, themselves, be at risk of having to pay costs incurred by other parties in consequence of their report.
134See, by analogy, Phillips v Symes [2004] EWHC 2330 (Ch), [2005] 1 WLR 2043. COPLR r166 provides for costs orders to be made against non-parties. •The expert must only advise upon the matters within their expertise, and make clear if a matter upon which their opinion is sought lies outside their expertise.
135PD 15A para 6(a). See also in this regard A Local Authority v M & Ors [2014] EWCOP 33, [2015] COPLR 6 at 88 per Baker J: ‘in assessing the expert evidence … the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others – see the observations of Eleanor King J in Re S [2009] EWHC 2115 Fam.’ While this is in large part, a matter for the expert, it also reflects the need to ensure that the right person is chosen by the instructing parties. In
SC v BS and A Local Authority,
136[2012] COPLR 567. the court (in granting permission for another expert to be instructed to report upon capacity, where the first expert, although a nationally recognised expert on autism, had not demonstrated the requisite degree of knowledge of the MCA 2005 but offered to undergo training) noted that: ‘It cannot be satisfactory to seek the expert opinion from someone who perceives the need to undergo training before he can give that opinion.’
137SC at para 37 per Baker J. The expert’s report – content
12.82PD 15A, amplifying COPR Pr126(2)–(4)/COPR r126(2)–(4),
138PD15A has not been amended under the Case Management Pilot. sets out in some detail the requirements that apply both as to the form and the content of an expert’s report, and they are not rehearsed here, save to emphasise that an expert report which does not comply with the requirements of paragraph 15 of PD 15A is unlikely to be accepted by the court, not just because of the formal defects, but more importantly because paragraph 15 sets out the ‘route map’ by which an expert can produce a report that establishes the proper building blocks by which reliable conclusions can be reached. As Henderson J put it in
Re S: ‘The rules are there for a good reason, and if they are not complied with a report, even from the most eminent of experts, is likely to lack the transparency and objectivity which the court rightly insists upon in expert evidence.’
139[2010] EWHC 2405 (COP), [2010] COPLR Con Vol 1112, at para 146.12.83Further, and as set out above (para 12.60), an expert must be very careful in their report not to seek to determine factual issues that are outside their direct experience. If – as is regularly the case in reports relating to best interests – the view of the expert as to where P’s best interests will lie will vary depending upon which interpretation of the facts is preferred, the proper course of action is for the expert to set out both alternative chains of reasoning from factual scenario to opinion as to best interests. In other words, the expert should give their opinion as to where P’s best interests will lie depending on whether the court accepts that the particular factual issue(s) is/are made out. The most obvious example is where the allegation is made that a named individual has abused or otherwise caused harm to come to P; in such a case, the expert should give their view as to (say) contact between P and that individual based upon either a) the allegation being established; or b) the allegation not being established (see chapter 14 below for further discussion of the resolution of factual disputes).
12.84There are two particular risks that the courts have identified that experts must guard against in the assessment of capacity:
•The first, which applies equally (if not with greater force) to those involved in the ongoing care and treatment of P, is succumbing to the ‘protection imperative’, namely feeling ‘drawn towards an outcome that is more protective of the adult and thus … fail[ing] to carry out an assessment of capacity that is detached and objective’;
140PH v A Local Authority and others [2011] EWHC 1704 (Fam), [2012] COPLR 128 at para 16(xiii) per Baker J. See also CC v KK and STCC [2012] EWHC 2136 (COP), [2012] COPLR 627 and also X and Y v Croatia (App No 5193/90, decision of 3 January 2011) (criticism by the ECtHR of the fact that the psychiatrist charged with determining X’s capacity saw her for only 20 minutes, at a time when she was ‘tired and under the influence of medication’ (para 87)). •The second is not paying sufficient weight to the fact that (as necessarily occurs in most cases) the expert only has the benefit of a limited exposure to P by comparison with the more ‘longitudinal’ picture enjoyed by other professionals with longer-term contact with P. While on the one hand, this may make it easier to produce a detached report, the risk is that the resulting report will represent a snapshot alone.
141PH at para 56. There is, in reality, unlikely to be any way in which this risk can be entirely avoided; the best that can be done is to ensure that the expert is alive to its existence.
Once the report has been provided
12.85An expert report disclosed by a party can be used by any party as evidence at any hearing in the proceedings. The report cannot be used by a party to whom it has been disclosed for any other purpose, unless:
•the document has been read to or by the court or referred to at a public hearing; or
•the court otherwise permits.
142COPR Pr5.10/COPR r18. 12.86As noted above, any party (not just an instructing party) can put written questions to an expert.
143COPR Pr125(1)/COPR r125(1) That entitlement is limited in that (subject to a different order of the court or the agreement of all the relevant parties
144COPR Pr125(3)/COPR r125(3) also provides for a practice direction to make alternative provision; none at present does so.):
•the questions can only be put once;
•must be put within 28 days beginning with the date upon which the report was served; and
•can only be for purpose of clarification of the report.
145COPR Pr125(2)–(3)/COPR r125(2)–(3). This last restriction is particularly important – courts take a very dim view of attempts to cross-examine experts in writing. Both to try to stop such questions being put and also so as to ensure that the expert is not bombarded with a sequence of questions from different parties, judges sometimes direct that any questions are to be put via the solicitors for one of the parties, most obviously those instructed on behalf of the Official Solicitor where P is a party and represented by the Official Solicitor.
12.87The Case Management Pilot PD imposes a further obligation in relation to putting written questions to an expert, namely that the question must be copied and sent to the other parties at the same time as they are sent to the expert.
146COPR Pr125(2)(d).If an expert fails to respond to a question put to them under the procedure put to them, then the court may order:
•that the instructing party or parties may not rely on the evidence of the expert; and/or
•that the party may not recover all or part of the fees and expenses of the expert or part from any other party.
147COPR Pr125(5)–(6)/COPR r125(5)–(6). 12.88Any answers given by the expert to questions put under the procedure set out above are treated as part of their report,
148COPR Pr125(4)/COPR r125(4). and subject to any different order of the court or final costs order, the instructing party or parties are responsible for meeting the costs both of the original report and of the answers.
149COPR Pr125(7)/COPR r125(7).12.89If permission has been granted to two (or more) experts to report upon an issue, then specific powers are granted to the court in addition to its general case management powers contained in COPR r25 and 85 (COPR Pr3.1 and Pr3.7). The court may at any stage direct that the experts meet for purposes of identifying and discussing the expert issues in the proceedings and, where possible, reaching an agreed opinion on those issues.
150COPR Pr128(1)/COPR r128(1). The court can specify the issues the experts must discuss, and can direct that the experts prepare a joint statement for the court setting out issues upon which they agree and issues upon which they disagree (together with a summary of their reasons for disagreeing).
151COPR Pr128(2)–(3)/COPR r128(2)–(3). Whether contained in a statement or otherwise, the contents of the discussions may, absent order to the contrary, be referred to at any hearing or at any stage in the proceedings (including, although the COPR do not say so expressly, for purposes of considering the conduct of any party for purposes of determining the final allocation of costs).
152COPR Pr128(4)/COPR r128(4).12.90The MCA 2005 and COPR are silent as to what should happen in the event that a party who has taken part in a joint instruction is dissatisfied with the expert report. By analogy with the position that prevails under the CPR, it is suggested that: ‘If having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.’
153Daniels v Walker (practice note) [2000] 1 WLR 1382 at 1387 per Lord Woolf MR. In the light of the statutory provisions and authorities discussed above, it is clear that the court will be astute to ensure that every other avenue is explored first before such permission is granted.