WHEN A SKELETON ARGUMENT TRIES TO INTRODUCE EXPERT EVIDENCE: AN APPROACH DEPRECATED BY THE COURT

We have seen many examples of witness statements trying to give expert evidence on this blog.  There have been posts about occasional attempts to deal with lacunas in evidence by introducing that evidence in written submissions.  In Re C (‘parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam) Sir Andrew McFarlane considered a case where a second skeleton argument was, in fact, an attempt to introduce detailed expert evidence to the court.

‘”The purpose of a skeleton argument is to assist the court by setting out concisely as practicable the arguments upon which a party intends to rely’ [CPR, PD52A, para 5.1(1) – emphasis added]. Although formulated as a ‘skeleton argument’, the second ACP document is, in reality, opinion evidence based upon the professional knowledge of those who instruct Ms Mills”

THE CASE

This was an appeal against a refusal by a judge to reopen findings of fact.  The mother in the case appealed on the basis that the court had wrongly rely on an expert, described as a psychologist, when she did not meet the criteria for being an expert.  An appeal against the judge’s findings at the hearing had been dismissed. The mother then applied for the findings of fact to be re-opened, largely on the basis of attacking the qualifications of the expert.  That application was dismissed by the judge.  The mother then appealed.  ACP-UK then applied to be joined into the action as an intervenor.

THE ACP’S SKELETON ARGUMENT

During the course of the hearing the judge asked counsel for the ACP whether there was any statutory provisions which supported an argument that the expert could not properly describe themselves as a psychologist.  There was an understanding that a short supplementary skeleton would be filed dealing with that issue.  Instead a  30 page document was filed which set out detailed criticisms of the way in which the expert had been involved.

THE ACP’S ROLE

1. 1. The ACP-UK is a representative professional body for clinical psychologists, whose aim is to provide strategic and coherent professional leadership to all clinical psychologists in the UK. ACP has taken as part of its role the task of ‘ensuring that the public are protected from those who claim to be “psychological experts” without requisite qualifications, expertise and regulation’.

1. 1. ACP applied to intervene in this appeal on the following basis:

‘The ACP-UK does not propose to make submissions on the disputed factual issues between the parties or merely to repeat the submissions of others, being mindful of the warnings given by Lord Hoffman in E v The Chief Constable of the Royal Ulster Constabulary (Northern Ireland Human Rights Commission intervening) [2008] UKHL 66, [2009] 1 AC 536.

Rather, the ACP-UK seeks to assist the Court by providing independent submissions on the issues that arise in the present case from the unique perspective of the representative body of psychologists who are qualified to report in cases such as these. It is able to offer an independent analysis and account as to the core qualifications, skills and expertise required in order to be able to undertake an expert assessment in private law proceedings.’

It was that on that basis (which was agreed by the parties) that I granted permission to intervene.

THE SURPRISING SUPPLEMENTARY SKELEON

1. 1. During Ms Mills’ oral submissions at the first hearing I asked to be taken to some authoritative document, for example a statutory instrument or formal regulation, in support of the ACP’s primary contention that Ms A is simply neither qualified nor trained to hold herself out as a psychologist or to advise on therapeutic intervention in a case such as this. Ms Mills was obliged to concede that there was no such authoritative source before the court at that hearing, but that these clear submissions were based upon her instructions. Ms Mills instructing clients were not in the court room, but were observing the proceedings remotely. She suggested, and I accepted, that the answer to that single question could be dealt with in a short document prepared for the second hearing. The point was therefore left on that basis.

1. 1. 1. To the court’s surprise, ACP responded to the opportunity to submit a short further document by filing a second skeleton argument running to 30 pages. Paragraph 1 explained the purpose of this further document:

‘This document has been prepared to focus on the qualifications required to answer the questions posed in the letter of instruction, dated 13^th May 2020, and in particular (with reference to Peel J’s order) whether Ms [A] has demonstrated she has those qualifications. That analysis is required if the Court is going to reach a conclusion as to whether it was “appropriate to instruct Ms Al and / or receive written and oral evidence from her”, per Peel J’s order of 13^th September 2022.’

1. 1. At paragraph 2, the skeleton acknowledged that there is no definition of ‘expert’ for the purposes of Family proceedings, and no definition of ‘psychologist’, beyond the seven ‘labels’ which have statutory protection. These concessions are followed by the following important concession: ‘whether a person is capable of assisting the Court by providing expert evidence is therefore a question of fact, not law’.

1. 1. The remainder of the document purports, by a most detailed analysis, to demonstrate that it was not appropriate to instruct Ms A. In the course of that analysis, extensive criticism is made of Ms A’s contribution to the proceedings, both in writing and orally.

1. 1. The ACP-UK second skeleton is of note for a number of reasons:

i) The skeleton represented a significant departure, without the leave of the court, from the basis upon which (in its own words) the ACP-UK had sought, and were permitted with the consent of all parties, to intervene in this appeal, which was:

‘to offer an independent analysis and account as to the core qualifications, skills and expertise required in order to be able to undertake an expert assessment in private law proceedings.’

In contrast, the document mounts a detailed critique of Ms A’s CV and her work in the present case;

ii) The document does not at any point address the issue for which permission to file a further submission was granted, namely the identification of any statutory instrument or formal regulation, in support of the ACP’s primary contention that Ms A is simply neither qualified nor trained to hold herself out as a psychologist or to advise on therapeutic intervention in a case such as this;

iii) By filing a 30-page, granular, negative critique of Ms A, the ACP succeeded in putting before the court, in another form, the evidence that would have been likely to have come from its chair, Prof Wang, if leave to file such evidence had not been refused by the judge;

iv) ‘The purpose of a skeleton argument is to assist the court by setting out concisely as practicable the arguments upon which a party intends to rely’ [CPR, PD52A, para 5.1(1) – emphasis added]. Although formulated as a ‘skeleton argument’, the second ACP document is, in reality, opinion evidence based upon the professional knowledge of those who instruct Ms Mills.

1. 1. The surprising manner in which ACP abused the permission that it was given to intervene in this appeal is deprecated. During the hearing it was necessary to determine how, if at all, the material submitted by ACP should be considered by the court. For Ms A, Mr Bagchi stressed that, had those acting for Ms A known of the approach that ACP intended to take in filing this document, they would have objected. He submitted that it was plainly wrong for detailed opinion evidence to be placed before the court by way of written submissions, with Ms A being expected to respond in the same way through her counsel.

1. 1. Mr Bagchi invited the court to afford little weight to the material submitted by ACP. He cast ACP as a campaigning organisation with a membership, he said, of only 1,300 out of the total body of some 14,000 clinical psychologists in England and Wales. In the circumstances, Mr Bagchi did not attempt to respond to each issue that had been raised against Ms A in the ACP document. Instead, he confined his submissions to a number of key points.

1. 1. During the hearing I concluded that it was simply neither possible nor fair to embark upon a detailed audit of Ms A’s involvement in this case by measuring her work against the critical opinion advanced by ACP. In short the reasons supporting that conclusion were:

a) To do so would be to undertake an inherently unfair process based upon unsolicited opinion evidence that had been refused admission by HHJ Davies and for which no permission had been granted by this court;

b) The current court process is an appeal hearing during which it was not contemplated that the court would hear evidence and determine detailed issues of fact and opinion. In contrast, for the assertions raised in Ms Mills’ skeleton to be determined, the court would have to engage in an extended process including:

i) Formal filing of evidence attributed to a named expert on behalf of ACP-UK (rather than having this material simply adduced in counsel’s skeleton argument);

ii) Detailed evidence in response from and on behalf of Ms A;

iii) Oral evidence from the ACP witness and Ms A, followed, only then, by submissions based on that evidence;

iv) A judgment determining the relevant issues between ACP and Ms A.

It would only be at the conclusion of such a process that the court might be able to hold that Ms A either was, or was not, qualified to carry out the instruction to provide a psychological report in this case.

c) Apart from being inherently unfair, the process urged upon the court by Ms Brereton and Ms Mills is fundamentally unsound and wrong. The central issue to be determined, rather than being litigated on appeal between the parties to the case, would be between Ms A and the ACP, who are merely interveners. For the ACP’s position to be elevated to that of prosecutor in what would be, in effect, a lack of fitness to practice claim against Ms A, in the context of an appeal against a judge’s decision not to reopen findings of fact in a private law children case, would stretch the boundaries of the appeal process to an untenable degree;

d) Were the court to accede to Ms Mills’ submissions and hold that Ms A is, indeed, not qualified to act as an expert psychological witness in family proceedings, that finding would have a major impact upon Ms A’s ability to continue to work as she currently does. Whilst in other fields of professional practice, via regulatory or disciplinary proceedings, such a finding might be made, that would only be the case after a full and fair hearing that had been properly constituted before an appropriate tribunal. The suggestion that this court, on the basis of submissions alone, and without affording any opportunity to Ms A to be heard directly, would make such a finding in the context of an appeal against a refusal to reopen findings of fact, only has to be stated for it to be seen to be wholly untenable.