In the judgment today in Khaled -v- Secretary of State for the Home Department  EWHC 857 (Admin) Mr Justice Garnham considered Part 35 of the CPR and the admissibility of expert reports in proceedings in the Administrative Court.
“The nature of JR challenges, and the need for them to be considered expeditiously, makes all the more important the consistent application of the discipline provided by the CPR. There is a real danger of injustice if the rules of court are disregarded. If expert evidence is to be adduced, it requires the leave of the court and it needs to be disclosed to the opposing side in sufficient time to make possible a considered response. If expert evidence is to be adduced, it is essential that the court controls the process to ensure the orderly management of the proceedings. If there is a failure to comply with an order or a rule of court, an application for relief from sanctions will be necessary.”
- CPR Part 35 applied to actions in the Administrative Court.
- A party seeking to rely on an expert should obtain permission under CPR Part 35.
- The court admitted an expert report when permission had not been obtained, however it had only limited weight.
The claimants were seeking judicial review relating to the safety of their return to Bulgaria.
THE JUDGMENT ON PROCEDURE AND EVIDENCE
“The Procedure and the Evidence
Time Estimate and Material before the Court
The time estimate for the hearing of this case, involving as it did both the propriety of returning Claimants to Bulgaria and the lawfulness of detention in the UK of four of them, was two days. The case raised matters of some importance both to the five claimants and to others awaiting possible return to Bulgaria. I understand that a number of cases are stayed behind this case.
The volume of material produced by the parties was considerable. There were three bundles of authorities containing reports of some 70 cases. There were seven bundles of documents, both case specific and of general application. The Claimants had wisely organised themselves so that they acted as a single team; nonetheless the skeleton arguments produced by the two sides ran for more than 170 pages. I was also provided with other notes and submissions which ran to some 20 pages.
Given the breadth of the issues to be covered the parties suggested, and I approved, a strict timetable for the making of submissions. As a result the hearing was completed in two days. That was achieved, however, only by the good sense and cooperation of the two competing legal teams and for that I am grateful. For future cases of this type, however, where generic challenges to the lawfulness of return to particular countries, and multiple unlawful detention claims are to be considered in a single hearing, a significantly more generous time estimate should be allowed.
There were deficiencies on both sides in preparation for this hearing. Documents were disclosed late. Amendments to pleadings were sought and made late. My general approach was to permit all relevant material to be admitted and arguments deployed, although I made it clear that I would take into account the effect of delay in my assessment of the value of, and response to, such material.
The Admissibility of Expert Evidence: the Amnesty International Report
One piece of evidence that caused particular difficulty was the expert report produced on behalf of the fifth Claimant, Hidyat Haji-Dyar. His solicitors had commissioned a report, dated 10 February 2016, from a Mr Tom Southerden of Amnesty International. This 42 page report was said to be “an independent expert opinion” in respect of the removal of Mr Dyar and “the general position regarding reception conditions and the operation of the Bulgarian asylum system in the context of the operation of Dublin returns to the country“. The report makes clear that:
“Amnesty International cannot, and does not, field witnesses to provide evidence in the investigation of this kind. Our reports represent the considered opinion of a variety of specialist researchers from across our organisation and therefore it would not be appropriate for an individual to attend the proceedings to provide evidence orally.“
This report was not the subject of an application to adduce expert evidence pursuant to CPR 35 and it was not the subject of discussion or correspondence between the parties. The report was disclosed by the Claimant to the Defendant in the middle of February 2016 amongst a collection of material the Claimants proposed including in a court bundle.
I agreed, with some reluctance, to permit the admission of this report into evidence. I did so because this case may be regarded as something of a test case for Bulgarian returns, and it would be unfortunate if what might be significant evidence from a respected Non-Governmental Organisation (“NGO”) could not be considered. But I made it clear that the weight I would attach to the contents of this report would reflect the circumstances in which it was adduced. Particularly significant, it seems to me, was the fact that it was served late; that the Secretary of State had not had an adequate opportunity to respond to it; that it was the work of more than one individual, although only one was named; that its author had made clear that in no circumstances would he agree to be cross-examined on its contents; and that it was a private report from Amnesty International which had not been subject to public debate and consideration, as is commonly the case with publicly directed reports of NGO’s like Amnesty International.
It was suggested in argument that CPR 35 did not apply, that it was not necessary for the Claimant to seek permission to rely on this report, that it was “common practice” in tribunals to serve such reports as they became available. Reliance was placed in support of these propositions on the decision of the Supreme Court in MN (Somalia) v SSHD  UKSC 30.
I reject all of those submissions. First, CPR 35 does apply to judicial reviews like the present. I see no possible grounds for disregarding it. (I note that Mr Southerden makes reference in paragraph 107 of his report to the need to comply with the CPR). The nature of JR challenges, and the need for them to be considered expeditiously, makes all the more important the consistent application of the discipline provided by the CPR. There is a real danger of injustice if the rules of court are disregarded. If expert evidence is to be adduced, it requires the leave of the court and it needs to be disclosed to the opposing side in sufficient time to make possible a considered response. If expert evidence is to be adduced, it is essential that the court controls the process to ensure the orderly management of the proceedings. If there is a failure to comply with an order or a rule of court, an application for relief from sanctions will be necessary.
Second, the existence, if it be the case, of a common practice before tribunals to admit expert evidence without formal application and disclosure to the opposing party in good time, cannot, in my judgment, properly affect the approach to admissibility in this court. Mr Chirico, for the Claimant, argued that because the test I would have to apply was whether a hypothetical tribunal might conclude that there are substantial grounds for believing that there was a real risk of treatment contrary to Article 3 ECHR, I should admit the report because the tribunal would admit it. I reject that argument. This is not a tribunal hearing. It is a hearing before the Administrative Court and the nature of the test to be applied as a matter of public law does not alter the applicability of rules governing the admission of evidence in such cases.
Third, MN (Somalia) is a case on very different facts. The question that arose there was whether regard could be had, by the Secretary of State determining asylum applications and tribunals in asylum appeals, to language analysis reports provided by an organisation known as Sprakab. In my judgment it says nothing about the admissibility of evidence in cases such as the present. This Court will ordinarily only admit evidence adduced in accordance with CPR 35.
I am reinforced in that conclusion by two decisions of this court. In Elayathamby v SSHD  EWHC 2182 (Admin), Sales J (as he then was) was concerned about the use by the claimant of “what purported to be an expert report from (an organisation called) KISA commissioned by the claimant’s lawyers for the purposes of this case“. Sales J said that the report was “an unsatisfactory document which should be given comparatively little weight“. He observed:
“no order was obtained from the court for expert evidence to be adduced. Had an application been made for such an order it is very likely it would have been refused. At the very least, if the application was allowed, the defendant would have been on notice that expert evidence was to be received by the court and would have had a fair opportunity to seek to obtain an expert report of her own….“
In his judgment in Pour Ouseley J observed that expert opinion evidence in that case too was put before the court without any application under CPR Part 35 (see paragraph 109). Ouseley J concluded that he would “admit all the evidence placed before me on all issues and judge it on its weight“. Notwithstanding the observations I make above about the obligation to comply with CPR 35, and for the reasons set out at paragraph 12 above, I propose to do the same in the present case. It cannot be assumed that the same indulgent approach will be taken in other cases.
RELATED POSTS ON EXPERTS
Permission to call experts
- Case Management, necessity and experts: is expert evidence “reasonably required”?
- Is an expert really necessary? Two recent cases.
- Permission not granted to call employment experts: the relevant principles considered.
- Is this an expert report I see before me? I think not
- The role of the expert witness in litigation: Supreme Court Guidance
- Expert reports: too long and not much use.
- More on experts: non-compliance with the rules taints the evidence badly
- The credibility of witnesses: joint meetings and overreaching experts: a case to point.
- Over eager experts just do not help: they hinder and harm the case of those who call them.
- Beware the expert evidence who “lectures” the court (and tells the judge who to believe).
- Expert evidence about the veracity of witnesses: well, its probably a waste of time.
- An expert must disclose details of professional relationship with a party otherwise the consequences can be dire.
- Irrelevant evidence, inferences and “forgery”: evidential issues in a High Court case.
- Principles of mitigation of loss & the credibility of expert witnesses.
- I didn’t mean it when I signed the joint report: what happens when experts change their minds?
- Expert evidence: the expert’s role: seeing the wood for the trees.
- Cross-examining expert witnesses: hints, tips and links.
- Experts going on a frolic: a family law case where the expert witness was “thoroughly unhelpful”.