Lord Woolf made a number of recommendations about expert witnesses in his Access to Justice report. But family judges and lawyers have already anticipated some of them and in many cases his proposals simply give the seal of approval to judicial guidelines and good practice in children and ancillary relief cases.
Woolf noted that experts sometimes take on a partisan role rather than acting as neutral fact finders or opinion givers. He said a partisan approach should be avoided and issues between opposing experts narrowed. However, these suggestions were laid down as guidelines for practitioners in ancillary relief cases almost six years ago.
In the landmark case of Evans v Evans (1990), Dame Margaret Booth directed that “all professional witnesses should be careful to avoid a partisan approach and should maintain proper professional standards”. She added: “Wherever possible, valuations should be obtained from a valuer jointly instructed by both parties. Where each party instructs a valuer, then reports should be exchanged and the valuers should meet in an attempt to resolve any differences between them or otherwise to narrow the issues.”
It is now common practice in local county courts and the Principal Registry to specify a timetable for the exchange of experts' reports and subsequent meetings between experts to prepare schedules of issues over which they agree or disagree. This narrows the scope of the contest between the parties and allows the court, in advance of the final hearing, to assess whether sufficient time has been estimated for the hearing.
In cases concerning children, the role of expert witnesses was considered in three important decisions by Mr Justice Wall. In December 1993, in Re M (Minors) (Care Proceedings: Child's Wishes) (1994), he directed that medical experts who were asked to give reports or opinions in child cases should be fully instructed. The letter of instruction, which should be disclosed and included in the court bundle, should set out the context in which the expert's opinion was sought and define the specific questions he or she was asked to address. Experts should also be invited to confer with each other before trial in an attempt to reach agreement.
Mr Justice Wall gave further guidance in two cases decided in 1994, directing that the expert or area of expertise should be identified in the order granting leave for expert evidence to be adduced, and for papers to be shown to the expert. He directed that the court should keep tight control over the timescale of reports, including the disclosure of the report to parties and other experts, discussions between experts, and the filing of further statements.
In ancillary relief cases, Mr Justice Thorpe gave guidance to family lawyers on the use of expert accountancy evidence in F v F (1995). In this case, which concerned the highly publicised £9 million award to Maya Flick, the parties had incurred costs of £1.44 million, of which approximately £200,000 had been spent on accountants.
Even in the context of a case where the husband conceded that his personal fortune was about £200 million, these costs were considered enormous. Moreover, much of the cost related to issues which did not merit the scrutiny experts had given them. This resulted, in Mr Justice Thorpe's view, from a failure to identify “what essential issue required to be addressed by expertise”. The experts had been unilaterally instructed and no effort had been made to “agree the ground that was to be covered, or…the bases of their instruction”.
Mr Justice Thorpe concluded that important lessons should be learned about the way experts in ancillary relief cases are instructed. He directed practitioners to apply principles of good practice for experts in Children Act cases to the ancillary relief field – experts should “always strive for objectivity and middle ground”. The court had an independent duty to discharge the function imposed by statute which experts should assist by not just presenting the court with a maximum figure which could reasonably be advanced.
Much controversy has surrounded Woolf's proposal to appoint court experts and expert assessors as a solution to the costs and delays of civil litigation. But the principle of joint instruction of non-partisan experts in family cases is well established, particularly where children are concerned.
Although parents often adopt an adversarial stance, the importance of an independent expert instructed to ascertain the facts and give an opinion and recommendation to the court about a child's interests should be recognised in all cases in accordance with the principle laid down in Section 1 of the Children Act 1989.