MacDonald J gave guidance on the question of when and how the court is to exercise its case management power to enable an expert to attend a hearing to give oral evidence under FPR 25.9(2). The question is whether it is ‘necessary in the interests of justice’ for the expert to do so – there is no gloss of exceptionality, and each case must be determined on its own facts.

Facts

In care proceedings involving alleged non-accidental injuries, MacDonald J heard a case management application by the parents pursuant to FPR 29.5(2) for a direction that six of the Single Joint Experts instructed in the case be called to give oral evidence; [1]. MacDonald J made clear from the outset that such applications would ‘ordinarily comprise a far more circumscribed process’ but noted there was a ‘dearth of authority’ on the operation of FPR 25.9.

Relevant law

Pursuant to FPR 25.9, expert evidence is to be given in writing unless the court directs otherwise (FPR 25.9(1)) and the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice (FPR 25.9(2)); [15]. Following receipt of the written expert report, questions to the expert may be put by each party in writing (FPR 25.10); [16]. The court may direct an experts meeting at any stage (FPR 25.16); [17].

Discussion

MacDonald J was satisfied that it was ‘necessary in the interests of justice’ for the six experts put forward by the parents to attend the hearing; [18].

The Court of Appeal made clear in Re M (Intermediaries) [2025] EWCA Civ 440 that where a test of necessity is set out in the rules, there is ‘no warrant for overlaying the test of necessity with concepts of rarity or exceptionality’. MacDonald J was satisfied that this principle applies to the interpretation of FPR 25.9(2) and it would not be appropriate to add a gloss of rarity or exceptionality to the test of necessity contained within FPR 25.9(2). A direction for the attendance of an expert pursuant to FPR 25.9(2) will be an exception to the general rule set out in 25.9(1) in and of itself, but there is no test of exceptionality. The test is whether the attendance of the expert is ‘necessary in the interests of justice’; [24].

Counsel for the parents had sought to rely on a list of 68 cases in which, they submitted, the attendance and cross examination of the jointly instructed expert witnesses resulted in a different outcome to that sought by the applicant local authorities. MacDonald J stated:

‘the fact that in a number of other cases the court has permitted the attendance of jointly instructed experts for cross examination, and their attendance is said to have had a material effect on the outcome in those cases, is not relevant to the determination of an individual application under FPR 25.9(2). That application will turn on the specific facts of the case in which it is made, having regard to the expert evidence in that case.’ [25]

Likewise, the fact that these were proceedings of ‘the utmost gravity’ was unlikely in and of itself to make the attendance of the experts ‘necessary in the interests of justice’; [29]. The nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged may be factors to be taken into account depending on the facts of an individual case. However:

‘the question of whether it is necessary in the interests of justice for the experts to attend the hearing will turn, primarily, on the content of expert evidence in question, considered in the context of the Overriding Objective in FPR Part 1 and the provisions of FPR Part 25, the importance in certain cases of the role of challenging evidence to ensuring the overall fairness of the hearing and the nature and extent of the task of the court in assessing the evidence before it, rather than on general considerations of the nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged therein per se.’ [32]

The fact that all parties agree that the expert should attend the hearing will not be determinative; [58vii)].

The test of necessity in the interests of justice also falls to be considered by reference to the ability of the parties to put questions to the expert in writing (FPR 25.10) and the ability of the court to direct a meeting of the experts to identify and discuss the expert issues and reach an agreed opinion on those issues where possible (FPR 25.16); [34]. MacDonald J noted in this regard that the requirement in FPR 25.10(2)(d) that written questions be for the purpose of clarification of the report only (rather than questions which would be put in cross-examination) is subject to the power of the court in FPR 25.10(2) to direct otherwise; [35]. In the first instance, the appropriate way of interrogating the written expert evidence will be in writing pursuant to FPR 25.10. With the court’s permission, and where appropriate and consistent with the Overriding Objective, written questions may extend beyond simple clarification of the expert report; [58(ii)].

In determining whether the test in FPR 25.9 is met, the role of challenging evidence in ensuring a fair hearing must also be borne in mind; [37]. Per Lieven J in X v Y [2023] EWHC 3170 (Fam), there is no right under Art 6 in Family Court proceedings to cross-examine a witness. However, the court’s case management powers must be exercised in a manner consistent with the parties’ Art 6 rights; [38]. In Chen v Ng [2017] UKPC 27, the Privy Council held that whether a trial judge was wrong to reject the evidence of a witness on grounds that were not put to that witness in cross-examination will turn on whether the trial, viewed overall, is fair; [40]. In Re B (A Child) [2018] EWCA Civ 2127, Peter Jackson LJ made clear that in assessing fairness, what is important is substance rather than form; [41]. In Tui UK Ltd v Griffiths [2023] UKSC 48, the Supreme Court emphasised that the general rule that a party is required to challenge by cross-examination the evidence of any witness on a material point which that party wishes to submit should not be accepted by the court is not a rigid one. The overarching question is whether, viewed overall, the hearing is fair. FPR 25.9(2) reflects this position; the question of whether an expert attends the hearing falls to be determined by reference to the test of whether such attendance is necessary in the interests of justice; [47].

A further question was the degree of investigation required for the court to determine whether a direction for the attendance of the expert is necessary in the interests of justice; [53]. MacDonald J agreed with the mother’s counsel that the court is not required to examine the expert evidence in ‘granular detail’ before deciding whether it is necessary in the interests of justice for the expert to attend the hearing. That evaluation will not require, for example, a question-by-question analysis of the party’s intended cross-examination; [54]. Once the court has identified the issues in the case, it should be readily apparent from a close reading of the expert evidence whether the interests of justice require the attendance of the expert; [55].

At [56], MacDonald J set out the questions which are likely to be at the forefront of the court’s mind when deciding whether it is necessary in the interests of justice to direct the attendance of experts (NB: this was ‘not an exhaustive list’ and several of the questions may be uniquely applicable to the public children law context):

‘(i) the extent to which the expert evidence is relied on;

(ii) the extent to which the expert evidence is disputed;

(iii) whether the parts of the expert evidence that are disputed are central to determination of the issues the court must decide;

(iv) the degree of consensus or disagreement between the instructed experts;

(v) whether it is possible fairly to deal with the points of dispute in writing without the attendance of the expert;

(vi) whether the expert evidence deals with a particularly novel or controversial area or an area where there is a lack of scientific consensus or rapidly evolving research;

(vii) whether expert evidence suggests that a dogmatic approach has been taken by an expert or that the reputation or amour propre of the expert is at stake;

(viii) what other evidence is available to the court relevant to determining the issues before it;

(ix) the position of the party against whom allegations are made and;

(x) whether the opportunity to challenge the expert evidence is necessary to ensure the overall fairness of the hearing.”

Where attendance of an expert is permitted, MacDonald J stated that the expert should be given advance notice of the topics to be covered in cross-examination and any fresh evidence. Where the court does permit the attendance of an expert, it may impose a strict time limit for cross-examination or specify the topics to be dealt with; [57].

MacDonald J then provided a concise summary of the general principles applicable to decisions under FPR 25.9(2) at [58].

MacDonald J concluded at [65] that:

‘it is to be anticipated that in a proportion of cases the process for written questions under FPR 2010 r.25.10 and discussion between the experts under FPR 2010 r.25.16 will render it unnecessary to direct the attendance of the expert at the final hearing, or will at the very least significantly narrow the issues to be addressed orally.’