Instructing Foreign Experts
I have been involved in a number of care cases over the last year or so which have seen the involvement of overseas experts with very mixed results. In one case the overseas report was pivotal, leading the local authority to withdraw very serious allegations of sexual against a parent. In another case the expert, whose report was entirely discredited, gave every impression of acting like a “hired gun” in the case.
Experts from overseas represent a potential valuable resource for parties in care proceedings. However, there are potential advantages and disadvantages to their use.
Potential advantages include the following:
(i) They create a greater pool of expertise available to the courts;
(ii) They make available to the courts expertise from very small niche specialist areas where similar expertise is simply not available in the UK. However, this is likely to arise in very few cases;
(iii) They may provide further opinion from outside the jurisdiction which may occasionally be of use to the court in arbitrating between opposing views of UK based experts;
(iv) They may be a source of genuinely new evidence and opinion which could help promote discussion and dissemination of information.
Potential disadvantages include the following :
(i) UK based medical experts are almost invariably involved in ongoing clinical practice and are usually current NHS employees. The clinical practice of overseas experts may be organised in an entirely different way;
(ii) The reason the expert may become known to advocates may be the result of “attention grabbing" headline publications;
(iii) There may be difficulties for the courts in obtaining appropriate information about an overseas expert’s actual practice and / or experience;
(iv) There may be little or no regulation of such witnesses as expert witnesses by their relevant medical associations;
(v) They may not be familiar with the UK court process;
(vi) The costs may be prohibitive.
The experts committee of the Family Justice Council examined this area in June 2010 and issued further guidelines in December 2011. The committee concluded that there were already sufficient safeguards available regarding the instruction of experts provided those safeguards are rigorously and consistently applied by the courts. The committee emphasised that all experts should be properly instructed in accordance with the 2008 Practice Direction: Experts in Family Proceedings Relating to Children (since superseded by FPR Practice Direction 25A).
It is, of course, for the court and not the parties to determine whether a particular expert is instructed and, if so, on what terms. The committee felt that strict compliance with the terms of the Practice Direction (or now Practice Direction 25A) by both advocates and judges should obviate the potential disadvantages of the use of overseas experts. The court will also no doubt wish to consider whether the instruction of an expert from overseas is justified according to the welfare needs of the child or children concerned and / or the Article 6 rights of any of the parties.
The following specific recommendations were made by the committee concerning an application to instruct an overseas expert.
Any such application should set out in writing:
a) Why a UK based expert is not to be used;
b) What efforts have been made to identify a suitable UK expert;
c) The financial implications of the instruction of the overseas expert; and
d) What consideration has been given to the practical arrangements to allow the foreign expert to contribute fully to experts' meetings and to give evidence to the court?
Prior to the instruction of an expert from outside the jurisdiction that expert should provide information that fulfils the recommendations outlined in Baroness Kennedy's report into Sudden Unexpected Death in Infancy. This details the characteristics of the expert which are of equal importance to all experts instructed by the courts in England and Wales and is a position recently endorsed in a decision of the Criminal Division of the Court of Appeal.
Therefore, before an expert is instructed, the trial judge should in all cases establish:
- What is the expert's area of practice in terms of the relevance to the issues upon which the court requires guidance?
- Does the expert have something genuinely exceptional to offer in terms of his / her expertise?
- Is the expert still in active clinical practice?
- To what extent is the prospective witness an expert in the subject in which he or she will be required to give an opinion in written or oral evidence?
- When did the expert last see a case relevant to the instant case in their own clinical practice?
- Is the prospective witness held in good standing with their Medical Royal College or overseas equivalent? Is he/she up-to-date with continuing professional development?
- Is his/her current practice regulated by a statutory body? If so what is that body?
- Has he/she received training in the role of expert witness within the last five years?
- What experience does the expert have in providing reports for, and giving evidence to, the courts in this and other jurisdictions over a similar period of time?
- To what extent is his/her view widely held in terms of accepted mainstream views and the spectrum of opinion overall?
- Has the expert confirmed his/her familiarity with the Practice Direction (now Practice Diretion 25A) and is willing to comply with all its requirements and acknowledges the potential consequences of failure to so comply?
Therefore, there are a number of hurdles to pass before persuading the court of the appropriateness of an overseas expert. Furthermore, the LSC costs limitations on experts may also prove to be a practical impediment. However, notwithstanding the challenges, the involvement of a suitable foreign expert in a genuinely exceptional case may prove to be invaluable.
- The report of a working group by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health (2004).
- Henderson v R.  EWCA Crim 1269.