H-L (A Child)

EWCA Civ 655 (13 June 2013)

Strict approach to permitting expert evidence in Family Proceedings - what is ‘necessary’

The Facts

The Court of Appeal allowed in part an appeal against the refusal to allow experts to be instructed in care proceedings. The Court of Appeal considered the new test under rule 25.1 FPR 2010 concerning expert evidence. The Court of Appeal held that ‘necessary’ means just that – necessary, and nothing less would do.

Munby LJ expanded this quoting from Re P (Placement Orders: Parental Consent) [2008] EWCA CIV 435 which holds necessary has ‘the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.


 Family proceedings of course have their own, entirely separate rules from the rest of the civil courts, and so this case appears, at first pass, to only be relevant to family practitioners. But there is a broader movement going on in civil litigation as a whole, for which this case is a signpost; a tightening of the rules under which expert evidence will be permitted, and more concerted judicial oversight when it comes to experts. Readers may recall that one of the primary aims of the Woolf Reforms in the late 1990s was to restrict expert evidence and its attendant cost, but that the Civil Procedure Rules in their original form achieved comparatively little in that respect. Indeed, that relative failure was one of the imperatives behind the Jackson reforms, which take a much harder-edged, proactive approach to controlling evidence and limiting recoverable cost.

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