Administrative Court reminds practitioners of the need for an application when seeking to rely on expert evidence

In a decision on an interim relief application in an age assessment judicial review, the Administrative Court has reiterated the requirements of the Civil Procedure Rules on expert evidence and in particular the need to make an application to rely on this as soon as possible. The case is R (MS) v Kent County Council [2024] EWHC 2661 (Admin).

MS arrived in the UK by crossing the Channel in October 2022. The Home Office initially said that although they did not accept that MS was a child, “your physical appearance and demeanour does not very strongly suggest that you are significantly over 18 years of age” and that they would treat him as a child until further evidence was available.

Just over a week later the Home Office changed their position and moved MS into adult accommodation. Concerns were raised by Care4Calais and two social workers met with MS in February 2023 and it was concluded that an age assessment was required and in the meantime MS should be accommodated as a child under section 20 of the Children Act 1989. On 11 June 2024 MS was advised that Kent County Council had concluded that his date of birth was 16 October 2000, instead of his claimed date of birth of 15 October 2006.

MS sought judicial review of that decision, and in the meantime sought interim relief for Kent to continue to treat him as his claimed age under the Children Act 1989.

The court said the following about the use of expert evidence:

12. Both parties seek to rely on expert evidence in respect of the tazkira. Neither party had, however, sought or obtained permission to rely on such evidence. Rule 35.4(1) of the Civil Procedure Rules 1998 provides that no party may call an expert or put in evidence an expert’s report without the court’s permission. The parties appeared to be labouring under the mistaken belief that such rule does not apply to judicial review proceedings. It does and it is important, yet again, to draw that to the attention of practitioners in this field. Further, it is incumbent upon parties to identify the need for expert evidence as early as possible. The 2024 edition of the Administrative Court Guide makes these points in clear terms:

“23.2.1 A party wishing to rely on expert evidence must obtain the court’s permission to do so. Permission will be given only where expert evidence is reasonably required to resolve the proceedings. There is no special dispensation from compliance with these rules in public law cases. The rules must be observed …

23.2.5 A claimant must give careful thought to whether to apply for permission to adduce expert evidence. Any application for permission to adduce expert evidence, and for appropriate consequential directions must be made at the earliest possible opportunity. Ideally, this should be done in the Claim Form or, if later, as soon as the need for it arises.”

13. More broadly, the Guide makes the important point at paragraph 2.1.2 that the public nature of judicial review proceedings “does not mean that the court will overlook or tolerate breaches of directions made by the court or of obligations imposed by the Civil Procedure Rules or Practice Directions or by this Guide”. At paragraph 2.1.3, the Guide observes that the importance of procedural rigour is reflected in a number of sections of the Guide. It then draws attention to three specific areas, one of which is the need “to ensure that applications are made at the earliest stage possible and not left to the last minute (for example, see … para. 23.2 for applications to adduce expert evidence)”. None of this is new; see, for example, the comments of Dame Victoria Sharp P in R (AB) v Chief Constable of Hampshire Constabulary [2019] EWHC 3461 (Admin), at [118].

14. Although neither party had previously identified the need for permission, each seeks permission to rely on expert evidence orally and neither, for understandable reasons, takes any point about their opponent’s failure to make a formal application at an earlier stage.

The court declined permission to the claimant to rely on one expert report relating to his tazkira but considered it as hearsay evidence instead. A second expert report for the claimant was given partial permission and Kent was given permission to rely on their expert report although it was ordered to be re-served with a compliant declaration of compliance with part 35 of the Civil Procedure Rules.

The judge noted that Kent had accepted that it should review its age assessment in light of the evidence from MS and said that it was at least arguable that MS was entitled to support under section 23C as a former looked-after child.

In deciding where the balance of convenience lay for interim relief, the court considered the need for Kent to expend resources against the evidence of the particular vulnerability of MS. Interim relief was granted. The case is now stayed pending the outcome of Kent’s reconsideration of the age assessment decision.