ROYAL COURT
OF JERSEY
FD 25/01
RESTRICTION
ON THE USE OF EXPERTS IN FAMILY PROCEEDINGS IN THE FAMILY COURT
Application
1.1 This Practice Direction supplements Part 4
of the Children Rules 2005 and Part 7 of the Matrimonial Causes Rules 2005 and
applies to all private law family proceedings in the Family Division of the
Royal Court of Jersey whether before the Family Judge or the Inferior Number
(the “Court”) including proceedings under the Children (Jersey) Law 2002 and
Matrimonial Causes (Jersey) Law 1949.
1.2 The purpose of this Practice Direction is
to restrict the use of expert evidence to that which the Court considers is
necessary to assist the Court in resolving proceedings justly, having regard to
the welfare of any child involved, the efficient management of court resources,
and the need to avoid undue delay or expense;
1.3 For the avoidance of doubt, any decision
made by the Court in response to an application under this Practice Direction
is a case management decision.
Overriding
Objective
2.1 In applying this Practice Direction, the
court and the parties must have regard to the overriding objective in Rule 4 of
the Children Rules 2005 and Rules 47 of the Matrimonial Causes Rules 2005 to
deal with cases justly, ensuring, inter alia, that:
2.1.1 the
case is dealt with expeditiously and fairly and with minimum delay;
2.1.2 the
welfare of any child with whose interests the Court is concerned is
safeguarded;
2.1.3 the
case is allotted an appropriate share of the court’s resources; and
2.1.4 the
use of and cost of expert evidence is necessary and proportionate to the issues
in dispute.
General
Rule: Restriction on Expert Evidence
3.1 Expert evidence may not be put before the
Court in family proceedings unless the Court grants permission.
3.2 The Court will only grant permission if it
is satisfied that the expert evidence is necessary to assist the court in
resolving the proceedings justly. Evidence that is merely “reasonably required”
or “helpful” will not suffice.
3.3 In determining whether expert evidence is
necessary, the Court must consider, inter alia:
3.3.1 the
issues in the proceedings to which the evidence relates;
3.3.2 whether
the evidence can be provided by a non-expert witness, such as a social worker,
guardian, or a party to the proceedings;
3.3.3 the
impact of admitting the evidence on the timetable, duration, and conduct of the
proceedings;
3.3.4 the
cost of the evidence and whether it is proportionate to the value and
complexity of the case;
3.3.5 whether
the evidence is likely to duplicate existing material or evidence before or
available to the court; and
3.3.6 any
risk to the welfare of a child or vulnerable party arising from delay or the
nature of the evidence being sought.
Definition
of an Expert
4.1 For the purposes of this Practice
Direction, an “expert” is a person who provides expert evidence for use in
proceedings. This includes but is not limited to, individuals or teams
providing opinions beyond the knowledge of the court, such as psychologists,
psychiatrists, medical professionals, independent social workers, accountants,
chartered surveyors, pension experts or other valuers or assessors.
4.2 A specific application under this practice direction
is not required for:
4.2.1 an initial marketing evaluation by an
estate agent for the purposes of an application for ancillary relief or an application
made under Schedule 1 of the Children (Jersey) Law 2002 unless a party proposes
to seek the court’s permission for an agent to give live evidence to the court
or proposes to instruct a second estate agent. If such an application is not
agreed by the other parties, an application needs to be made to the Court in
accordance with this Practice Direction;
4.2.2 a written valuation of chattels with
individual value of less than £10,000;
4.3 Although these individuals are treated as
experts by the court, for the avoidance of doubt, evidence provided by a Jersey
Family Court Advisory Service (“JFCAS”) officer, a social worker employed by
Children’s Social Care, or a guardian appointed by the Court is not expert
evidence for the purposes of this Practice Direction (requiring a separate
application to be made for such evidence to be adduced, unless the Court directs otherwise).
Procedure
for Seeking Permission
5.1 A party seeking to adduce expert evidence
must apply to the Court for permission to admit expert evidence on notice as
soon as possible and no later than the first hearing at which the issue requiring
expert evidence is identified, unless the Court directs otherwise.
5.2 The application must be made in writing and
on not less than five days’ notice to the Court, and to all other parties,
supported by written evidence sworn by the advocate with conduct of the
application (or by the party seeking the order if not represented), clearly
setting out:
5.2.1 the
name and field of expertise of the proposed expert including their curriculum
vitae which identifies how their expertise is relevant to the issue which the
court needs to determine;
5.2.2 a
concise statement of the issues the expert is intended to address;
5.2.3 a
draft letter of instruction including the proposed specific questions which the
expert is expected to answer, which must be within their expertise and relevant
to the proceedings;
5.2.4 an
explanation of why the evidence is necessary and cannot be provided by existing
evidence or a non-expert witness;
5.2.5 a
draft timetable for the preparation and filing of the expert’s report;
5.2.6 an
estimate of the costs and confirmation of funding arrangements; and
5.2.7 a
draft order for the court’s consideration.
5.3 Where proceedings have been issued under
the Children (Jersey) Law 2002 and the application for expert evidence is
asserted to be necessary to enable the Court to make that determination, the
application must also delineate in specific terms how obtaining the requested
expert evidence is in the best interest of, and meets the welfare of, the child
as required by article 2 of the Children (Jersey) Law 2002.
5.4 An application to the Court is required in
all cases under this Practice Direction if a party proposes calling an expert
to give evidence to the court at a substantive hearing.
Preference
for Single Joint Experts
6.1 Where expert evidence is deemed necessary,
the Court will ordinarily direct that it be provided by a single joint expert
(SJE) instructed by all parties, unless there are exceptional circumstances
justifying separate experts.
6.2 Exceptional circumstances may include a
significant conflict of interest, the complexity of the issues requiring
distinct expertise, or evidence that a party’s case would be unfairly
prejudiced without separate representation.
6.3 The court may direct discussions between
experts to narrow areas of disagreement before permission for separate experts
is granted.
Restrictions
on Unregulated Experts
7.1 Expert evidence will only be permitted from
individuals regulated by a recognised statutory or professional body unless the
court directs otherwise.
7.2 The court may only permit evidence from an
unregulated expert in exceptional circumstances and only if:
7.2.1 no
regulated expert is reasonably available in the relevant field;
7.2.2 the
unregulated expert demonstrates exceptional qualifications, experience, and
adherence to standards equivalent to those of a regulated professional; and
7.2.3 the
evidence is critical to the just resolution of the proceedings; and
7.2.4 the
unregulated expert confirms in advance that they are otherwise willing to
comply with the requirements and expectations placed by the Court on experts as
set out in this Practice Direction and Schedule thereto.
Duties of
Experts
8.1 Experts permitted under this Practice
Direction must comply with the duties set out in the Schedule to this Practice
Direction, including the overriding duty to assist the Court impartially on
matters within their expertise, irrespective of the identity of the party
providing instructions or payment for their services.
8.2 The expert’s report must be addressed to
the Court, comply with the content requirements set out in Schedule to this
Practice Direction, and include a statement of truth verifying the report’s
accuracy and independence.
Review and
Control by the Court
9.1 The Court retains the power to limit the
scope of expert evidence, exclude unnecessary evidence, or revoke permission if
circumstances change or the evidence no longer meets the necessity threshold.
9.2 At any stage, the Court may direct that
alternative means, such as an article 29 report ordered under Children (Jersey)
Law 2002 or a review of existing records, be used instead of expert evidence.
Costs
10.1 The Court will have regard to the costs of
expert evidence when granting permission and may impose conditions, such as
cost-sharing between parties or caps on fees, to ensure proportionality.
10.2 Publicly funded parties must comply with any
requirements of Legal Aid regarding prior approval of expert costs.
Commencement
11.1 This Practice Direction comes into force with
immediate effect and applies to all proceedings commenced on or after that
date, as well as existing proceedings where an application for expert evidence
is made after that date.
SCHEDULE A
General
duties on experts instructed in private law family proceedings
1. Court Permission
1.1 Experts must have the Court’s permission
to provide evidence, and the court must have satisfied itself that the expert’s
evidence input is necessary for just resolution of the dispute or issue to be
determined by the court.
1.2 Experts should satisfy themselves before
accepting instructions that those instructing them have obtained the necessary
act of court or court order to adduce expert evidence, particularly if payment
for their services is to be made from the Legal Aid Vote.
1.3 No payment for expert services from the
Legal Aid Vote will be made unless the Court has given permission in advance
for the expert to be instructed.
2. Qualifications
2.1 Experts appointed must satisfy themselves
before accepting instructions to undertake an assessment, prepare a report or
appear in Court to give expert evidence that they have the requisite
professional qualifications, good standing with their professional or
regulatory body and relevant and up to date experience to give the expert
evidence which they are instructed to provide.
2.2 Experts must be up to date with relevant
continuing professional development in the field on which their opinion is
sought.
3. Report and Duties
3.1 Before accepting instructions, an expert
must satisfy themselves that they can provide the opinion in good time for any
timetable or listed hearing identified in an act of court.
3.2 If an expert is unavailable to attend any
hearing at which the Court has given permission for them to give oral evidence,
they should alert instructing parties to non-availability before accepting
instructions.
3.3 The expert shall provide a written
estimate of the likely costs of their report and any court attendance
authorised by reference to their hourly rate.
3.4 In any written report, the expert must
detail their qualifications, instructions, and opinions, ending with a
statement of compliance with their duty to the Court.
3.5 The expert must remain impartial, and
must acknowledge in their report that their overriding duty, in preparing a
report or giving an opinion or evidence, is to the Court and that this duty and their duty to remain
impartial at all times is their primary duty and this takes precedence over the
interest of the party or parties who instruct them or who may be responsible
for their fees.
3.6 The expert shall confine their opinion to
the matters material to the issue in dispute and which
are within the expert’s skill and expertise. Where an expert is asked a
question to the answer to which falls outside that expert’s skill or expertise,
they shall say so at the earliest opportunity.
3.7 Where an expert expresses an opinion,
they shall take into account and record in their evidence
the extent to which their opinion takes into account
any particular factors including ethnicity, cultural, societal or religious
diversities of parties, or, if relevant, a party’s neurodiverse traits,
differing abilities or language difficulties or other limitations.
3.8 The expert must be prepared to accept
written questions about their report or opinion and to produce written
responses to such questions within the timetable ordered by the Court.
3.9 The expert must be prepared to engage in
round table discussions or hot tubbing, if ordered by the Court.
3.10 The expert must notify the parties and the
Court in writing if anything causes them to change their opinion or alter their
conclusion as soon as is reasonably possible or practicable.
4. Children's Proceedings – additional
considerations of confidentiality
4.1 Before permission is obtained from the
Court to instruct an expert in children proceedings,
the party seeking permission needs to make the enquiries of the proposed expert
referred to above in order to provide the Court with information to enable it
to decide whether to give permission. In practice, enquiries may need to be
made of more than one expert for this purpose. This will, in turn, require each
expert to be given sufficient information about the case to decide whether they
are in a position to accept instructions. Such preliminary enquiries, and the
disclosure of information about the case, which is a necessary part of such
enquiries, will not require the Court’s permission and will not amount to a
contempt of court.
4.2 However, experts whether instructed or in
receipt of inquiries about instruction, are expected to acknowledge and
understand the confidential nature of all family proceedings and should be
particularly aware of the obligations placed on the parties and them by Rule 25
of the Children Rules 2005.
5. Conflicts of interest and professional
indemnity insurance
Before accepting instructions, an expert must
take steps to satisfy themselves that they have no conflict of interest and
that they have adequate and sufficient professional indemnity insurance.
6. Contents of written reports
The expert
must include in their written report:
6.1 the expert's name, address, and
qualifications;
6.2 a summary of the instructions received,
and documentation or evidence considered including a recital of any issues or
questions they have been asked to address or answer;
6.3 an executive summary of their conclusions,
opinion or findings;
6.4 a description of any tests or
examinations conducted, including dates and who was present;
6.5 the facts and assumptions upon which
their opinions or conclusions are based;
6.6 the expert's opinion, with reasons,
including any risk assessments relevant to the case;
6.7 a summary of any reasonable range of
opinions in their field of expertise identifying any opinion which falls
outside consensus in a given field, any factual assumptions made, unusual or
contradictory or inconsistent features of the case, or whether any opinion is
provisional, and why the expert has reached their view;
6.8 a statement that the expert understands
and has complied with their duty to the court;
6.9 the expert's signature and date of their
signature.
This Practice Direction will come into force
with immediate effect.