Judge: Sir Nicholas Wall, President of the Family Division
Citation:  EWHC 1442 (Fam)
Summary: This case, in the Family Division, is nonetheless relevant to practitioners in the Court of Protection because the guidance given by the President regarding the appropriate wording to adopt in orders in which permission for expert evidence is given has some applicability in the Court of Protection.
The original wording that had been used in the family proceedings was the familiar ‘the court deems this expert report to be a reasonable and necessary disbursement on the certificates of the publicly funded parties…’.
The President considered Schedule 5 of the Community Legal Services (Funding) Order 2007 which contains the relevant provisions on the funding of expert reports, and the imminent change in approach in family proceedings which will mean that expert evidence must be ‘necessary’ rather than ‘reasonably required’, and gave the following guidance (which has been paraphrased and modified to focus on issues relevant to the Court of Protection):
(i). The standard wording cited above should not be used. It does not bind the LSC. Instead, wording such as the following should be adopted:
a) The proposed assessment and report by X are vital to the resolution of this case.
b) The costs to be incurred in the preparation of the report are wholly necessary, reasonable and proportionate disbursements on the funding certificates of the publicly funded parties in this case.
(ii). If the court takes the view that the expert’s report is necessary for the resolution of the case it should say so, and give its reasons, either in a preamble or short judgment, even where the order is by consent.
Comment: Although at present the test for the commissioning of expert evidence in the Court of Protection remains one of ‘reasonably required’ (COPR r.121), it would be as well to follow the President’s guidance in order to minimise problems with securing public funding for expert reports. This will require the parties seeking expert evidence to persuade the court that additional evidence is required, beyond that available from the relevant statutory bodies involved and/or P’s treating psychiatrist, in order that the court can satisfactorily explain why permission has been given. While this process no doubt occurs in most cases already, it may be that having to give reasons for the decision might focus the court’s mind more sharply on the need for, and scope of expert evidence, as well as the stage at which it should be obtained.