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Evidence, Practice and Procedure: Limitations on appeals against case management decisions, on instruction of experts and over-representation by lawyers

Date:25 JAN 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsIn Re TG (A Child) [2013] EWCA Civ 5 Sir James Munby P (sitting with Aikens LJ and Sir Mark Hedley) set down a series of markers for the ordering of opinion evidence and appeals from case management decisions - especially in children proceedings. He concluded with a warning to lawyers on the cost of representation which interests do not conflict.

Injuries to a twelve day old child were unexplained. In care proceedings the father supported by the mother, wanted to call an American expert on orthopaedic biomechanics (the study of influences of forces on the human body). Five medics were already instructed and the case had been managed to a specific trial date, which delivery of the further report would pre-date by one working day. His Honour Judge Bellamy - the ‘clarity and incisiveness' of whose judgement was commended by the court (para [16]) - refused permission to instruct the biomechanics expert. He had already rejected one application on this point - not appealled against by the father. He reminded himself of the provisions of FPR 2010 Part 25 (expert evidence) and took the view that the evidence ‘was not reasonably required in the case'. The cost of the report was disproportionate and the inevitable further delay would not be ‘purposeful or proportionate' and contrary to Children Act 1989 s 1(2).

The court dismissed the father's appeal. It was against a case management decision. The President set out five ‘basic principles' (para [23]) in relation to such appeals:

  • (1) Case management involves giving full effect to the overriding objective in FPR 2010 r 1.1, and to the case management duties in r 1.4.
  • (2) Essential to ‘appropriate case management' (para [26]) is the court's powers to control and to ‘exclude evidence' in r 22.1.
  • (3) The court has particular duties in relation to expert evidence (r 25.1); and he stressed the existence of the new Part 25 in operation from 31 January 2013, and that under the new r 25.1 only evidence which is ‘necessary to assist the court will be necessary' (para [30]).
  • (4) In general terms the Court of Appeal should support the robust case management judge ([35]).
  • (5) Finally, case management decisions are almost invariably made in the judge's discretion and judgement is generally given ex tempore. They must be regarded accordingly and any appeal looked at through the prism explained by Lord Hoffman in Piglowska v Piglowski [1999] 2 FLR 763 (see para [38]).

The President firmly dismissed the father's argument (para [59]) on court control of evidence under FPR 2010 r 22.1(2). He held that it was self-evidently Human Rights Act 1998 compliant. This rule can be regarded as controversial in European Convention 1950 terms: if the court refuses to hear relevant evidence could it impede a fair trial? That said r 22.1(2) did not call for evaluation. The court's role in control of opinion evidence (FPR 2010 r 25.1) has been long known to the common law giving a clear basis for dismissing the appeal.

The President paid tribute to the children lawyer, especially in the adversarial aspects of ‘this vitally important [children] work'. He then forcefully made his own costs-saving point (paras [72]-[76]). Where parties' interests do not conflict there must be consideration by lawyers as to whether each needs separate representation. On the appeal, the guardian supported the local authority; the mother, the father: four advocates (especially at state expense) was unnecessary. The ‘leaching away' of public money ‘must stop' said the President.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Case management is dealt with in Chapter 5 and Expert Evidence at Chapter 22.  

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.