Family law

By David Burrows, David Burrows, Bristol

Impartiality of the expert witnessLiverpool Roman Catholic Archdiocesan Trust v Goldberg [2001] NLJ 1093, Mr Justice Evans-LombeIt has long been the law that the role of an expert witness is to give independent and impartial evidence to the court.

This is, to an extent, confirmed by the Civil Procedure Rules 1998 (CPR), rule 35.3, which stresses the duty of the expert to help the court, and that this duty overrides his duty to anyone who may have given instructions.

The role, and the need for impartiality within it, has been authoritatively explained in The Ikarian Reefer [1993] 2 Lloyd's Rep 69, Mr Justice Cresswell.In Liverpool Roman Catholic Archdiocesan Trust v Goldberg, Mr Justice Evans-Lombe was presented with evidence from a QC on behalf of a friend and fellow member of chambers in a professional negligence case.

He said that consideration of permission to admit expert evidence was in two phases: first, was the evidence from a body of opinion which might be said to be relevant to an issue before the court and of value in disposing of that issue.

The second stage depended on the nature of the evidence (for example, evidence of law would not normally be admissible since the court should be the judge of that).

Here, that the witness admitted to a friendship with the defendant, made his evidence 'unsuitable' on grounds of public policy, and it should not be admitted.For the family lawyer this is a reminder: think twice before inviting your client's accountant to give controversial valuation evidence; beware of the doctor or valuer who is a friend of the family; and think carefully before you allow your client free rein in choosing or vetting any expert.

The evidence may be unravelled - or fatally flawed - at the hearing on grounds such as those set out in the Liverpool Archdiocesan Trust case.Care application: local authority proof of threshold conditionsRe G (Children)(Care order: Evidence of Threshold Conditions) (2001) The Times, 5 July, CAThe question of threshold conditions in proceedings under section 31(2) of the Children Act 1989 (care and supervision) was considered by the Court of Appeal in Re G (Children) (Care order: Evidence of Threshold Conditions).

Lord Justice Hale held that it should be routine for local authorities to provide a summary for the court of the factors relied on to establish significant harm.

The court must then decide at what level of harm the state was entitled to interfere in the life of a family and impose an order under section 31(2).

All factors relevant at the date of the hearing could be considered by the court; and the date from which the threshold must be crossed was the date when the local authority first intervened (Re M (Care Order: Threshold Condition) [1994] 2 AC 424, HL).

It was then for the judge to decide on the basis of the evidence before the court and on relevant expert opinion as to what the disposal should be.

(It is interesting to note that The Times law reporters have at last realised that the word 'minor' was intended to be replaced by 'child' by the Children Act 1989 - will other reporters be long to follow this breakthrough?)Bigamy and ancillary reliefRamphal v Ramphal (2001) The Times, 24 July, CASection 21(1) of the Matrimonial Causes Act 1973 makes it clear that a petition for nullity can found a claim for ancillary relief.

Ramphal v Ramphal affirms that such a claim in the case of a bigamous marriage - though not easy to get off the ground (Whitson v Whitson [1995] Fam 198, CA) - is not prevented on any public policy grounds.Summary assessment of costs: courts must refer to the schedule of costs1-800 Flowers Inc v Phonenames Ltd (2001) The Times, 9 July, CAAt a time of the introduction of graduated (legal aid) fees for the bar, bench-marking of costs for particular processes (still under consideration) and the Civil Procedure Rules 1998 summary assessment costs regime bedding down, the short judgment in 1-800 Flowers Inc v Phonenames Ltd makes helpful reading.

On costs the appeal was allowed and the judge below - who appeared to have adopted a somewhat arbitrary approach to summary assessment - was told that he was not entitled to use such assessment as a form of costs tariff.Lord Justice Jonathan Parker suggested the following approach as one for dealing with summary assessment: the court should focus on the figures prepared by the receiving party.

In doing so the court could draw on its own experience of costs in similar cases, to the extent it saw fit.

If the court then thought the figure claimed unreasonable it might go back to the detailed workings to see what specific deductions should be made.

At all times the exercise must be by reference to the receiving party's workings, not to an arbitrary tariff.

(Bench-marking may introduce a tariff; but with safeguards (as at present proposed) for higher and lower claims.

And, be it noted, there is no reason in principle where injustice might be done for the court not to summarily assess but to put costs back for detailed assessment - in which case receiving parties should always ask for a payment of costs on account - CPR 1998 rule, 44.3(8)).Practice direction - committalFollowing the decision in Mubarak v Mubarak [2001] 1 FLR 698, CA the President of the family Division has issued Practice Direction (Family Proceedings: Committal) (16 March 2001) [2001] 1 WLR 1253, [2001] 1 FLR 949.

In Mubarak, it may be recalled, the Court of Appeal set aside Debtors Act judgment summons ([2001] Gazette, 20 April, 31).

It urged practitioners to ensure that applications were compliant with the European Convention of Human Rights, article 6(3)(a) and (d) - that a person must know the case against him and have an opportunity to cross-examine witnesses.

The president was urged to issue a practice direction along the lines of the Rules of the Supreme Court 1965, order 52 (as now set out in CPR 1998, schedule 1).

The March practice direction is designed to do this.For the most part it sets out procedural matters - such as that applications in the High Court must be by summons and in the county court in accordance with the County Court Rules 1981, order 29.

Proceedings must be in accordance with Practice Direction: Committal Applications (which supplements orders 52 and 29) and with which practitioners will need to be familiar where a committal application is to be made.

For example, where the application 'requires more information' the CPR practice direction must be 'observed' (16 March practice direction paragraph 1.1(c) - for example paragraph 3 of the CPR practice direction contains directions about written evidence).

All those involved in such proceedings are urged to have regard to the Human Rights Act 1998 and to rights afforded under it (16 March practice direction paragraph 2; CPR practice direction paragraph 1.4).