Family law

Expert evidence - disqualification and proportionality

R (Factortame Ltd) v Secretary of State for Transport (No 8) [2002] EWCA Civ 932; [2002] 3 WLR 1104, CA

A witness may be well qualified to give opinion evidence, but is he disqualified by the nature of his relationship with a party? His evidence may be seen as not impartial by one party and he should therefore be disqualified, said Mr Justice Evans-Lombe in Liverpool Roman Catholic Trustees v Goldberg (No 3) [2001] 1 WLR 2337.

This is putting it a little high, said the Master of the Rolls in R (Factortame Ltd) v Secretary of State for Transport.

A witness's 'disinterest is not automatically a precondition to the admissibility of his evidence.' It may be disproportionate to exclude his evidence (impartiality sacrificed on the altar of proportionality?).

So where a local authority includes evidence from, for example, its employed child psychologist, the evidence should be looked at in the light of whether he understands his primary duty to the court, before considering disqualification.

The Leary order lives

Q v Q (Costs: Summary Assessment) [2002] 2 FLR 668, Mr Justice Wilson

In Leary v Leary [1987] 1 FLR 384, CA Mrs Justice Booth, supported by the Court of Appeal, had made an order that a husband pay a sum of costs which she assessed summarily at the end of the hearing (per order 62, rule 7(4)(b)).

When the Civil Procedure Rules 1998 required there to be summary assessment for hearings lasting less than one day (Costs Practice Direction, paragraph 13.2(2)), it was thought that perhaps the Leary order was dead.

Not so, says Mr Justice Wilson in Q v Q.

On the contrary, he points to the practice direction (at paragraph 13.1) stating that the court 'should [always] make a summary assessment'.

In Q v Q, he took the view (at [34]) that the need for the parties to avoid 'expense, delay and aggravation' (per Lord Justice Purchas) and get on with their lives - not least of all, for the benefit of the child concerned in these proceedings - dictated summary assessment.

Perhaps in family proceedings it can be 'preferable to sweep away further detailed argument on costs with a broad brush' (at [25]).

Judge's disagreement with expert evidence - split trials

Re B (Non-accidental Injury: Compelling Medical Evidence) [2002] EWCA Civ 902; [2002] 2 FLR 599, CA

In Re B, the Court of Appeal has again reminded judges of the need to explain fully if they disagree with expert evidence.

A child, aged some 12 months, had been subjected to 'appalling injuries' and eventually died.

Strong medical opinion was unanimous that the injuries could not have gone unseen by the mother, even if she had not inflicted them.

The judge found that the mother's cohabitant had inflicted the injuries, but that the mother had no knowledge of them.

Therefore, he rejected the local authority's application for care of the mother's six-year-old child on the preliminary issue of whether she was aware of the younger child's injuries.

The court reminded practitioners of the need to have regard to the comments of the president in Re B (Split Hearings: Jurisdiction) [2002] 1 FLR 334 at 339 where she said: '...the judge does have an obligation to give reasons why he should set aside the medical evidence', for example, where he has other evidence which makes 'the uncontroverted medical evidence logically impossible'.

This did not exist in the present case.

An important procedural point arose from Lord Justice Thorpe's judgment (at [43]).

In preliminary issue trials, the preliminary issue(s) must be clearly drafted, he said; and then the court's order must make clear the judge's finding on each issue.

By David Burrows, David Burrows, Bristol