Expert Evidence in Judicial Review: Insights from R (MS) v Kent County Council and Practical Steps for Compliance with CPR 35.4(1)

In the recent decision on an interim relief application in an age assessment judicial review, the Administrative Court emphasised the requirements under the Civil Procedure Rules (CPR) regarding expert evidence. This case, R (MS) v Kent County Council [2024] EWHC 2661 (Admin), serves as a reminder for practitioners to seek permission for expert evidence as early as possible in judicial review proceedings.

The case involves MS, who arrived in the UK in October 2022 after crossing the Channel. Initially, the Home Office did not contest MS’s claim of being a child despite doubts. However, MS was soon moved into adult accommodation, prompting Care4Calais to intervene, leading to a recommendation for an age assessment. In June 2024, Kent County Council concluded that MS was significantly older than he claimed, determining his birthdate as 16 October 2000 rather than the 15 October 2006 date he provided.

MS sought judicial review of the age assessment decision, requesting interim relief for Kent County Council to treat him as a minor. During the proceedings, both parties presented expert evidence regarding MS's tazkira (Afghan identity document) but had not obtained prior permission from the court to rely on these expert reports.

The court addressed the CPR provisions related to expert evidence, specifically Rule 35.4(1), which mandates court approval before submitting expert evidence. Practitioners must seek permission at the earliest opportunity, ideally within the Claim Form or as soon as the need for expert evidence arises. This guidance, as outlined in the 2024 Administrative Court Guide, reinforces procedural rigour in public law cases, underscoring that judicial review does not exempt parties from complying with CPR obligations.

In this case, the court permitted Kent’s expert evidence on the tazkira, albeit with instructions for resubmission to ensure compliance with CPR part 35. Meanwhile, one of MS’s expert reports was considered hearsay, and another was partially accepted. The judge also acknowledged that Kent County Council would reconsider MS’s age assessment in light of the newly provided evidence.

In assessing MS’s interim relief request, the court weighed the resource demands on Kent County Council against MS’s specific vulnerabilities. The interim relief was granted, allowing MS to be treated as a minor while Kent reviewed the age assessment decision. The case is now on hold, pending the outcome of Kent’s reassessment.

This ruling reinforces essential procedural steps and the importance of early applications for expert evidence in judicial review, highlighting the Court’s commitment to procedural rigour and the timely identification of critical evidence. Practitioners should take note that securing expert permission early can avoid procedural setbacks and enhance the effectiveness of the judicial review process.

Step-by-Step Guide to Seeking Permission for Expert Evidence in Judicial Review (CPR Rule 35.4(1))

This guide provides a structured approach to applying for permission to use expert evidence in a judicial review under CPR Rule 35.4(1). Follow these specific steps to meet the requirements, including time limits and forms.

Step 1: Identify the Need for Expert Evidence Early

• Timing: You must identify the need for expert evidence at the earliest possible stage. Ideally, submit your request with the Claim Form or within 7 days of recognising the need for such evidence.
• Evaluation: Assess if the expert evidence is crucial to resolving your case. It should be directly relevant to a disputed issue in the judicial review (e.g., a psychological assessment for age disputes).

Step 2: Prepare the Application for Permission

• Application Form: Use Form N244 (Application Notice) to formally request permission for expert evidence.
• Complete Sections 3 and 10 of the N244, detailing your request for expert evidence and why it’s necessary for your case.
• Supporting Documents: Attach a draft of the expert’s report or, if not available, an outline explaining the expert's qualifications, the scope of evidence, and its relevance to your case.
• State Justification: In your application, explain:

? - The expert's area of expertise.

? - How the evidence relates to the specific issues in your case.

? - Why is the evidence reasonably necessary to resolve the proceedings (e.g., establishing age in an age assessment dispute)?

Step 3: Serve the Application and Supporting Documents

Deadline for Serving Opposing Party: The application and all supporting documents must be served on the opposing party within 3 days of filing the application with the court.

- Notice to Opposing Party: The opposing party may object to the application. Ensure you leave sufficient time before hearing dates for them to review and respond.

Step 4: Submit the Application to the Court and Await Permission

• Filing with the Court: File Form N244 along with the fee (if applicable), supporting documents, and proof of service on the opposing party.
• Await Court Decision: The court may grant permission, deny it, or schedule a hearing to decide on the application. Ensure all your submissions are compliant with CPR 35.

Step 5: If Permission is Granted, Follow CPR Part 35 Requirements

• Ensure Compliance: Submit a final, signed report from the expert that includes:
• A declaration of compliance with CPR Part 35.
• An acknowledgement of the expert’s duty to the court to provide independent evidence.

Procedure Differences for Immigration Tribunal Appeals

In the Immigration Tribunal, a different approach applies. The Tribunal Procedure Rules, particularly Rule 10(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, govern the use of expert evidence.

Seek Permission if Necessary: While the Tribunal rules are generally more flexible, some cases may still require permission, especially if the expert’s evidence pertains to complex technical matters.

Provide Justification for Relevance: As with judicial review, ensure the expert evidence is relevant and addresses specific issues central to the case.

Submit Evidence Timely: The Tribunal typically expects expert evidence to be provided with the appellant’s bundle or soon after. There is more leniency in immigration appeals, though compliance with deadlines and early submission are encouraged to avoid adjournments.

Key Difference: The Immigration Tribunal procedure is generally less stringent than CPR 35.4(1). In Tribunal appeals, permission may not always be required, especially if expert evidence directly supports case facts. However, timely identification and relevance remain crucial in both forums.