EXPERTS WHO CAN’T REPORT IN TIME: BETTER READ THIS: IF YOU CAN’T REPORT ON TIME PROBABLY BEST NOT TO TAKE INSTRUCTIONS AT ALL…

In X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 HH Clifford Bellamy (sitting as a Deputy Circuit Judge) made some observations in relation to the role of the expert, particularly when that expert cannot report timeously.  The observations in relation to the need for an expert to know the importance of complying with court timetables and being proactive in notifying the court.

“There will always be occasions when, despite an expert having genuinely believed that he or she could complete a report by the date set by the court, circumstances change and that is no longer possible. Where that happens, the expert should let his or her instructing solicitor know promptly, giving reasons for the delay and indicating the new date by which the report can be completed. An application should be made to the court for the timetable to be varied”

THE CASE

Two medical reports were needed in a Court of Protection case.   The parties were to jointly instruct a consultant paediatrician.  There were continued delays in the report.  Those delays included a failure to open a password encrypted document timeously and an inability to attend court to explain matters to the judge (the expert was giving evidence in another case elsewhere).   The judge made an order that a different expert be instructed.

THE JUDGE’S OBSERVATIONS ON THE ROLE OF THE EXPERT WITNESS
Case management
  1.  So it is that six months after Dr Ward was instructed to prepare a report in respect of X and four months after she was asked to prepare a report in respect of Y, neither report has been written. Neither X nor Y has been seen by Dr Ward. It very much appears to be the case that Dr Ward has thus far spent little, if any, time reading the medical records that have been made available to her.
  2.  The parties have come to the conclusion that in terms of both time and cost it would be appropriate for Dr Ward’s instructions to be terminated and an alternative expert instructed. I agree.
  3.  That leaves an outstanding issue concerning Dr Ward’s fees in respect of any work she can prove she has undertaken since she was instructed. Without hearing argument on the point I am unable to resolve that issue. However, in light of the history set out above it is at this stage difficult to see how any fee could be justified.
The duties of an expert
  1.  The duties of an expert are to be found in Family Procedure Rules 2010 (FPR) Practice Direction 25B. The following paragraphs of that Practice Direction are of particular relevance in this case:
‘ The expert’s overriding duty
3.1 An expert in family proceedings has an overriding duty to the court that takes precedence over any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
Balancing the needs of the court and those of the expert
7.1 It is essential that there should be proper co-ordination between the court and the expert when drawing up the case management timetable: the needs of the court should be balanced with the needs of the expert whose forensic work is undertaken as an adjunct to his or her main professional duties.
The expert’s response to preliminary enquiries
8.1 In good time for the court hearing when the court will decide whether or not to give permission for the expert evidence to be put before the court (or also in children proceedings, for the expert to be instructed or the child to be examined or otherwise assessed) or for the advocates’ meeting or discussion where one takes place before that hearing , the party or parties intending to instruct the expert will need confirmation from the expert –
(a) that acceptance of the proposed instructions will not involve the expert in any conflict of interest;
(b) that the work required is within the expert’s expertise;
(c) that the expert is available to do the relevant work within the suggested time scale;
(d) when the expert is available to give evidence, of the dates and times to avoid and, where a hearing date has not been fixed, of the amount of notice the expert will require to make arrangements to come to court (or to give evidence by telephone conference or video link) without undue disruption to his or her normal professional routines;
(e) of the cost, including hourly or other charging rates, and likely hours to be spent attending experts’ meetings, attending court and writing the report (to include any examinations and interviews);
(f) of any representations which the expert wishes to make to the court about being named or otherwise identified in any public judgment given by the court.’
  1.  It is clear from, in particular, paragraphs 7.1 and 8.1(c) that time is important. As paragraph 7.1 states, ‘the needs of the court must be balanced with the needs of the expert whose forensic work is undertaken as an adjunct to his or her main professional duties’. This is qualified, to an extent, by paragraph 8.1(c) which requires confirmation from the expert that he or she ‘is available to do the relevant work within the suggested time scale’.
  2.  If an expert is unable to complete the work within the time proposed by the court then the expert must say so at the time he or she is approached to accept instructions. The parties and the court then have a choice. Either they accept that the preparation of the report will take longer than hoped for and a later filing date must then be set or, alternatively, an approach must be made to another expert. What is not acceptable in the Family Court is the kind of conduct displayed by Dr Ward in this case.
  3.  In August 2018 the Family Justice Council and the Royal College of Paediatrics and Child Health jointly published Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations . So far as concerns the issues with which I am concerned, the following passages from that guidance are relevant:
‘1.2 This guidance is a companion document to the generic expert witness standards set out in Part 25 of the Family Procedure Rules (FPR) and focuses on a specific discipline, namely paediatricians….The guidance provides information to all stakeholders regarding the use of paediatricians as expert witnesses and directs the reader to discipline specific information in relation to regulation, codes of conduct, competencies, supervision and quality of service…
1.8   It should be noted that the timetable for public law applications is 26 weeks and whilst the court has the discretion to extend time limits, the expectation is that this will be in the minority of cases and only if the extension is required to resolve the proceedings justly (Children Act 1989 s.32(5))…The court appointed expert must comply with the time limits imposed by the court and ensure that the lead solicitor is kept fully informed of any unforeseen developments that may put the filing date in jeopardy…’
‘5.1 Paediatricians in the UK are subject to statutory regulation, ethical principles and codes of conduct of the General Medical Council and take guidance on the clinical standards and training programmes and requirements published by RCPCH. Allied clinical specialties have their own child protection guidelines.’
  1.  Section 8 of the guidance is headed ‘Quality of Service’. The following two paragraphs are relevant to the issue with which I am concerned:
‘8.12 The paediatrician will transparently and clearly set out fees, hours of work and timeframe, and communicate any variation without delay over the duration of the assessment process.
8.13 The paediatrician will present and deliver his or her evidence as directed by the court and comply with all relevant court orders and directions.’
  1.  The duties set out in Practice Direction 25B are duties imposed upon the expert by the court. They are in addition to and not in substitution for any duties imposed by the expert’s own professional body. They are, therefore, minimum standards.
Conclusion
  1.  The Family Court is heavily dependent upon medical experts from a wide range of specialties to assist it in dealing with some of the cases that come before the court. Experts are required to assist the court in determining threshold issues – for example, in determining whether a child’s injuries have been sustained accidentally or whether they are inflicted injuries, in identifying the likely mechanism by which injuries were caused, in identifying the likely window of time within which the injuries were sustained. Experts are also required to assist the court in making welfare decision – for example, as to whether the child is suffering from any mental or psychological difficulties and as to her treatment or therapeutic needs. The Family Court simply could not operate without the assistance of medical expert witnesses.
  2.  However, it is also the case that although the Family Court needs the assistance of medical experts it also owes a duty to the child concerned to determine the proceedings without delay. That is a statutory obligation clearly set out in s.32 of the Children Act 1989. As Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations makes clear, it is also an obligation that is placed on medical expert witnesses.
  3.  There will always be occasions when, despite an expert having genuinely believed that he or she could complete a report by the date set by the court, circumstances change and that is no longer possible. Where that happens, the expert should let his or her instructing solicitor know promptly, giving reasons for the delay and indicating the new date by which the report can be completed. An application should be made to the court for the timetable to be varied. Where there are justifiable reasons for adjusting the timetable it is unlikely that the court would refuse. What is not acceptable is what has happened in this case where the expert has given a succession of dates by which her reports would be delivered but, as is patently obvious, with no genuine or realistic expectation that any of the dates suggested could, in fact, be met. Courts and experts must work together in a co-operative co-ordinated way. That simply has not happened in this case.
  4.  A draft of this judgment was provided to Dr Ward in advance of today’s hearing. She was invited to attend court today to make representations before the judgment is handed down. Dr Ward did attend.  She handed in a letter explaining the personal difficulties she has faced in recent months. The explanation she gave was much the same as the explanation she has previously given to the parties’ solicitors. She was profusely apologetic for her failings in this case. She indicated that she has decided not to accept any further instructions in cases in the Family Court.
  5.  I am deeply concerned about the way Dr Ward has behaved in this case. It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain.
  6.  I have decided to publish this judgment on Bailii. In arriving at that decision I have consulted with both the President of the Family Division and the Family Division Liaison Judge for the Midland Region .