R (Children) , Re

Permission to instruct an expert may be refused where the proposed report has not been shown to bear, even tangentially, on the issues the court must decide. The disappearance of a delay-related objection does not cure an independent failure to establish relevance. The court may assess relevance in light of existing authoritative medical evidence and the evidential basis for the proposed inquiry.

The appellant father appealed from HHJ Walsh’s refusal, in the Leeds County Court on 21 December 2011, to permit him to instruct Dr Markos on the transmission or cross-transmission of sexually transmitted conditions. The refusal rested on delay and the apparent lack of relevance, given existing medical evidence concerning the child and the evidential basis for assessing the father’s condition. Although the imminent trial fixture had subsequently been lost for other reasons, the central issue remained whether the proposed expert evidence was relevant to the issues for determination.

The Court of Appeal unanimously dismissed the father’s appeal.

1. HHJ Walsh had refused to permit the proposed expert instruction because the application was made so late that it threatened the preliminary issue trial fixture. He had also concluded that the proposed investigation and report appeared irrelevant, since the child’s HPV condition had been expertly treated and a consultant paediatrician had subsequently given the child a clean bill of health in relation to any condition capable of sexual cross-transmission.
2. The loss of the imminent fixture removed the immediate delay concern, but it did not affect the separate relevance issue. The respondents were right that there was insufficient indication that Dr Markos’s report would be even tangentially relevant to the issues the court would decide.
3. In assessing relevance, the court was entitled to rely on the consultant paediatrician’s authoritative evidence concerning the child’s position as at the previous summer. Evidence concerning the father’s condition depended on his own reporting after he had withdrawn from the family home. Those matters provided no sufficient basis for the proposed expert inquiry.
4. The reasoning of the circuit judge was therefore sound. The changed circumstances relied on by the appellant had no bearing on the relevance reasoning, and the order remained: appeal dismissed.

• Court of Appeal (Civil Division): The appeal was dismissed. Thorpe LJ gave the judgment; Aikens LJ and Black LJ agreed.
• Leeds County Court: HHJ Walsh refused permission to instruct the proposed expert on 21 December 2011.