In this article, Nicholas Todd, a Neurosurgeon and Spinal Surgeon on MAPS’ expert panel, reflects on the judgment in Re C and explores how it has reshaped expectations of expert witnesses in the Family and Civil Courts. He explains the importance of demonstrating qualifications clearly and concisely in reports, and outlines practical recommendations for preparing a relevant, tailored CV in line with the principles of CPR Part 35.
Abstract
The suitability of an unregistered expert psychologist to give evidence to the Family Court was considered in Re C [2023] EWHC 345 (Fam). An important part of the judgment focused on the need for an expert witness to demonstrate, in a short, concise and relevant CV, why they have the expertise to give opinion evidence in the case. The judgment has important implications for experts in civil litigation, where the same issues arise. The case of Re C is reviewed and recommendations for a new format for part of expert reports provided in civil litigation are discussed.
Keywords: Re C, court-appointed experts, duty of care, registration, concise CV
Introduction
In Re C [2023] EWHC 345 (Fam), the President of the Family Division of the High Court, Sir Andrew McFarlane, considered the expertise of an expert witness in the Family Court. He recommended that experts should demonstrate their qualification to provide expert evidence in a specific case. Re C is summarised and the lessons are applied to expert witnesses in civil litigation.
Case report
A first instance judgment (HHJ Davies) was made regarding the care of two children. The decision, in part, was based upon the joint expert evidence of Ms A (a psychologist). The mother appealed the judgment in part because Ms A was not a qualified psychologist. Permission to appeal was refused by Peel J; the application was “totally without merit”. Peel J said that Ms A was jointly appointed and no appeal against her appointment was made. She produced reports and gave oral evidence. Her expertise was questioned at the first hearing. The judge accepted her evidence and found her an impressive witness. Ms A’s evidence was only one part of the totality of the evidence considered.
The mother issued a fresh application to re-open the issue of Ms A’s expertise. An unsolicited email from Professor Wang (Chair of the Association of Clinical Psychologists – UK, ACP) commenting upon Ms A’s expertise was appended. HHJ Davies rejected the application to re-open her findings. The mother appealed this decision on various grounds including, again, that Ms A was not a qualified psychologist.
Peel J granted permission to appeal, not because it had a real prospect of success, but “for some other compelling reason”, namely that it was in the public interest for the court to consider the instruction of unregulated psychologists as experts in the Family Court in general and Ms A’s role in this case in particular.
Leading Counsel for the mother, Ms Brereton KC, submitted that Ms A was “not qualified to carry out the assessment”, relying upon the opinion of Professor Wang (for the ACP). Ms A’s CV was said to be a diffuse and confusing narrative of her activities. It was difficult to determine what her qualifications were.
The Family Court adopts a rigorous approach to the admission of expert evidence; pseudoscience, not based on any established body of knowledge, is inadmissible there. Professor Wang’s letter said that Ms A had no recognised substantive postgraduate qualifications. She was unregulated and should not be calling herself a psychologist, nor carrying out psychological assessments or making diagnoses. She was not entitled to the title of Dr.
Peel J had set out the issues. Was it appropriate to instruct Ms A and/or receive written and oral evidence and/or attach weight to her conclusions? She had no recognised substantial postgraduate qualifications, she was not registered as a practitioner psychologist, she was not subject to professional regulation, and the opinion of the President of ACP-UK was that she should not be acting as an expert in court proceedings. The ACP was represented and, put bluntly, they said that Ms A should not be holding herself out to be a psychologist of any description.
Sir Andrew asked if there was any authoritative document, such as a statutory instrument or formal regulation, to support that argument. There was no such authoritative source before the court. A suggestion that the point could be dealt with in a short document was accepted. The document acknowledged that there was no definition of an “expert” in the Family Court and no definition of “psychologist” (beyond seven labels having statutory protection). Whether a person is capable of assisting the court by providing expert evidence is a question of fact, not law.
The appeal was dismissed on many grounds. In respect of Ms A’s expertise there was no bright-line definition of who can claim to be a psychologist and/or offer advice to the court. There are protected titles such as “Chartered Psychologist”. There are many unprotected titles such as “Consultant Psychologist” or “Child Psychologist”. Use of unprotected titles is not illegal. The generic label “psychologist” is not protected and may be used by any individual, whether registered or not. A report by an unregistered person calling themselves a psychologist may be called a “psychological report”.
There is no definition of an “expert” in family proceedings. An expert is a person who provides expert evidence for use in proceedings. It was a matter for the psychological profession and, ultimately, Parliament, whether a tighter regime should be imposed. The Family Court had to work with the current, potentially confusing, scheme with its eyes wide open to the need for clarity over the expertise of unregistered or unchartered psychologists.
There is clear and solid ground to be found in a registration scheme compared to a potential expert who presents a voluble, unstructured CV. An obvious lesson was the need for clarity as to an expert’s qualification and/or experience. A diffuse, unstructured CV does not transmit the necessary information crisply and clearly. Lawyers, magistrates and judges are lay readers. They need to identify with clarity, and in short form, the basis of an individual’s expertise. Registration or chartered status in psychology provide a reliable, one-stop, method of authentication. If a potential expert is registered under one of the protected titles this can be taken as sufficient qualification to offer an expert opinion within that field of practice. A psychologist’s CV should prominently highlight whether they are registered or not. An unregistered psychologist must assist the court by providing a short and clear statement of their expertise.
The Family Court will not prohibit the instruction of an unregulated psychologist. The current rules and guidance are clear and contain an element of flexibility. The question of whether a proposed expert is entitled to be regarded as an expert remains one for the individual court applying accepted principles. A witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion. This is not an open house and there is a need for caution. In every case the court should identify whether a proposed expert is registered. The court in Re C found that sensible practice, where the expert is unregistered, is for the court to indicate in a short judgment why it is, nevertheless, appropriate to instruct them.
Discussion
The judgment in Re C addresses some issues that are specific to the Family Court but they have relevance to the demonstration of expertise for expert witnesses in civil litigation. The role of experts in civil litigation is found in the Civil Procedure Rules (CPR) Part 35 and the practice directions (PD). The requirements of the CPR, in part, require the following:
- Expert evidence is restricted to that which is reasonably required to resolve the proceedings (CPR 35.1).
- An expert is a person who has been instructed to give or prepare expert evidence for the purpose of proceedings (CPR 35.2).
- An expert has an overriding duty to the court (CPR 35.3).
- No party may call an expert or put in evidence an expert’s report without the court’s permission (CPR 35.4).
- Expert evidence will usually be given in writing (CPR 35.5).
- An expert’s report must comply with the requirements set out in CPR PD 35; at the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court and the expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written (CPR 35.10).
The requirements of the Practice Direction include the following:
- Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation (CPR PD 1).
- Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate (CPR PD 2.2).
- Experts should consider all material facts, including those which might detract from their opinions (CPR PD 2.3).
- Experts should make it clear when a question or issue falls outside their expertise and when they are not able to reach a definite opinion, for example because they have insufficient information (CPR PD 2.4).
- If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court (CPR PD 2.5).
An expert’s report must:
- Give details of the expert’s qualifications.
- Give details of any literature or other material which has been relied on in making the report.
- Contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based.
- Make clear which of the facts stated in the report are within the expert’s own knowledge.
- Say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision.
- Where there is a range of opinion on the matters dealt with in the report summarise the range of opinions; and give reasons for the expert’s own opinion.
- Contain a summary of the conclusions reached.
- If the expert is not able to give an opinion without qualification, state the qualification.
- Contain a statement that the expert understands their duty to the court, and has complied with that duty; and is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014 (CPR PD 3.2).
A standard professional CV will list the doctor’s training, qualifications, past and current appointments and publications — i.e. everything that has happened in their professional life. This is the unfocused, diffuse type of CV that was deprecated in Re C.
Following the judgment in Re C, experts in civil litigation need to prepare a concise CV demonstrating relevance and clarity to the instant case. The court needs to be able to see that the expert is qualified to give an opinion on the issues of the case on the basis of competence and qualification.
Registered membership of the relevant regulatory or professional body is a reliable, one-stop authentication method which can be sufficient qualification to offer an opinion within that field of practice. Specific further knowledge might include formal qualifications, posts held and published work expressed shortly and clearly.
Ideally a one- or no-more-than-two-page specific CV will focus on the issues before the court. Relevant formal qualifications and registration status, any other relevant experience such as authorship of relevant published papers or textbooks; relevant training or teaching which you have delivered; relevant studies you have carried out and/or relevant panels or committees you have sat on should be listed.
Consider a short narrative section describing current practice and how frequently you deal with the same issue which is now before the court. Any relevant qualifications as an expert witness such as postgraduate training should be included. A model short CV is attached (Appendix 1). It is unnecessary and unhelpful to include everything you have ever done. Do not include hobbies, interests and prizes nor every publication ever written. Do not state how many times you have given evidence as an expert witness.
I suggest that the concise CV should be the first thing that the judge reads after the front sheet of the report. That should be followed by the case summary (as required by CPR PD 3.2). In a few pages the judge will see, quickly and concisely, whether you have the expertise to act as an expert witness for the court and see your summary views about the case. This approach will be valued by judges and is likely to increase his respect for you and your opinions.
ORCID iD
Nicholas Todd https://orcid.org/0000-0002-0622-8853
Reference
- Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6
The article was initially published in the Medico-Legal Journal on 10/02/24.
Citation
Todd N. Demonstrating the expertise of an expert witness in the civil court: Use of a concise CV after the judgment in Re C. Medico-Legal Journal. 2024;0(0). doi:10.1177/00258172231191343
Original Article
Demonstrating the expertise of an expert witness in the civil court: Use of a concise CV after the judgment in Re C
Nicholas Todd
Medico-Legal Journal 0(0) 1–4
© The Author(s) 2024
DOI: 10.1177/00258172231191343
journals.sagepub.com/home/mlj
Appendix 1 – A model concise CV
My Clinical and Academic Experience in Respect of the Issues in this Case.
Name and title
Professor/Mr/Dr A. Consultant
Concise CV
Relevant to C
Qualifications
MB BS, MD, FRCP, FRCS
Clinical experience
In my NHS practice I have extensive clinical experience in taking a history, examination, management, surgery and follow-up of patients with C.
Academic experience
I have lectured extensively on the subject of C. I have 10 publications in this area. Those publications have addressed the aetiology, frequency, causes and subclassifications of C, clinical presentation (history and examination), the role of imaging in diagnosis, the indications for, and timing of imaging and surgery, outcomes and standards of care in C. I was a co-author of the national guidelines for the management of C.
Medico-legal experience
I have provided many hundreds of condition and prognosis, duty of care and causation reports in cases of C. Medical reports have been provided for both Claimants and Defendants. I have given evidence in court in many of these cases.
Selected references
I have not published in this specific area but I have extensive knowledge of this subject and I am familiar with the standards of care, management and outcomes of C.