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Family Law

The leading authority on all aspects of family law

31 JAN 2013

The new FPR 2010, Part 25 (Experts and Assessors) and accompanying practice directions come in to force today. What changes do they make?

Amy Royce-GreensillOn 31 January 2013, the new FPR 2010, Part 25 and accompanying practice directions come into force. Instead of there being just one practice direction about Experts and Assessors (the old PD25A) there will be now be six (PDs 25A-25F).

The explanatory notes to the Amendment Rules provide a useful brief summary of the changes if you are in a real hurry. However, we have spent some time playing spot the difference and set out below a more detailed summary of the changes the new rules make. We have also produced some destinations and derivations tables to help you navigate the new rules and practice directions (available to download below).

Rule 25.1 - This is a change we've known about since A Local Authority v DS [2012] EWHC 1442 (Fam). The old wording restricted expert evidence to that which is ‘reasonably required to resolve the proceedings'. The new wording is stricter - expert evidence will be restricted to that ‘which in the opinion of the court is necessary to assist the court to resolve the proceedings.'

Rule 25.2 - This is the interpretation rule. The old rule contained two definitions (‘expert' and ‘single joint expert'). The new rule contains five definitions (‘authorised applicant', ‘children proceedings', ‘expert', ‘local authority' and ‘single joint expert'). The rules now expand the definition of those who are excluded from being an expert.

Rule 25.3 - The expert's overriding duty to the court remains the same. There is now a reference directing the reader to the new PD25B (The Duties of an Expert, the Expert's Report and Arrangements for an Expert to Attend Court).

Rule 25.4 - The main principle stays the same - in any proceedings, a person may not without permission of the court put expert evidence (in any form) before the court (although the new rule rewords this principle). The old r 25.4(2) and (3), which dealt with what must be identified when an application for permission is made (eg field and name of expert), no longer appear here and instead are covered in r 25.7. The old r 25.4(4), which gave the court power to limit the amount of a party's expert fees and expenses that may be recovered from any other party, has disappeared (but note that r 25.12 allows the court to limit the amount that can be paid by way of fees and expenses to an expert and see costs rules generally). The new r 25.4(2)-(4) expands on r 12.20 - in a nutshell, in children proceedings the court's permission is required before an expert is instructed or a child is physically or psychiatrically examined or otherwise assessed. In children proceedings only, any evidence resulting from instructions or examinations undertaken without permission will be inadmissible unless the court rules otherwise.

Rule 25.5 - This is a new rule. Paragraph (1) contains factors the court should have regard to in children proceedings when deciding whether to give permission for an expert to be instructed, a child to be examined or to allow expert evidence (in any form) before the court. Paragraph (2) contains factors the court should consider in proceedings other than children proceedings when deciding whether to give permission for expert evidence (in any form) to be put before the court. The focus of the factors, on costs and timetables, reflects the current trend of robust case management.

Rule 25.6 - This is a new rule. It states that parties must apply for the court's permission to instruct an expert as soon as possible and sets out for each type of proceedings the latest point at which permission should be sought (eg the First Appointment in proceedings for a financial remedy). A version of this new rule previously appeared at old PD25A, para 1.11.

Rule 25.7 - This incorporates the old r 25.4(2), setting out what must be identified in an application for permission and adding some extra requirements (for example, the issues to which the expert evidence is to relate). This rule also states that Part 18 applies to an application for the court's permission and that a draft order should be attached to any application for permission. The draft order should set out matters specified in PDs25C and 25D. In children proceedings, the applicant has to go one step further and also set out in their application the questions that the expert is to answer.

Rule 25.8 - This incorporates old r 25.4(3) and states that the court will only grant permission in relation to the expert named or the field identified in the application notice. When the court grants permission, it will give directions specifying a date for the expert's written report. In addition, in children proceedings the court must approve the questions for the expert and give a date by which the expert is to receive the letter of instruction.

Rule 25.9 - This is exactly the same as old r 25.5. Expert evidence should be given in a written report unless the court directs otherwise and the court will only direct that the expert attend a hearing if it is necessary to do so in the interests of justice.

Rule 25.10 - This is almost the same as old r 25.6, providing for written questions to an expert. It has been reworded slightly and two extra points have been added: (1) any questions to the expert must be copied and sent to the other parties at the same time they are sent to the expert (this used to be included at old PD25A, para 6.1(b) anyway); and (2) that the expert's answers must be given within the timetable given by the court (again, this used to be stipulated in the old PD25A at para 6.1(a)).

Rule 25.11 - This is almost exactly the same (with minor wording changes) as the old r 25.7 - the court's power to direct that evidence is given by a single joint expert.

Rule 25.12 - This is the same as the old r 25.8 - instructions to a single joint expert.

Rule 25.13 - This is almost the same (with some wording changes) as the old r 25.9 - power of court to direct a party to provide information.

Rule 25.14 - This is almost the same as the old r 25.10 - contents of report - except that the requirements of an expert's report are now set out in PD25B (as opposed to PD25A).

Rule 25.15 - This is almost the same as the old r 25.11 - use by one party of an expert's report disclosed by another (although ‘relevant hearing' has now been changed to ‘any hearing where an issue to which the report relates is being considered').

Rule 25.16 - This is exactly the same as old r 25.12 - discussions between experts.

Rule 25.17 - This is exactly the same as old r 25.13 - expert's right to ask court for directions.

Rule 25.18 - This is a new rule requiring copies of any order or document affecting an expert filed after the expert is instructed to be served on the expert within 2 days of the party responsible for instructing the expert receiving the order/document. This previously appeared in a different form, without the 2-day time limit, at old PD25A, paras 2.5 and 4.7.

Rule 25.19 - This is a new rule, but incorporates the requirements of the old PD25A (at paras 9.1-9.3) to inform the expert in writing about the court's determination and the use made of the expert's evidence within 10 business days after a final hearing. Unless the court directs otherwise, the expert should be sent a copy of the final order and any transcript of the court's decision (or reasons if in the magistrates' court).

Rule 25.20 - This is exactly the same as old r 25.14 - assessors.

Amy Royce-Greensill is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.


Destinations and Derivations Table – FPR 2010, Part 25

Destinations and Derivations Table - New PD25A

Destinations and Derivations Table - New PD25B

Destinations and Derivations Table - New PD25C

Destinations and Derivations Table - New PD25D

Destinations and Derivations Table - New PD25E

Destinations and Derivations Table - New PD25F


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