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Bloomsbury Family Law Briefing: August Teaser

July is the month when judges clear their in-trays of the previous legal year’s outstanding cases, so a bumper month… These are a suggestion for July’s….:

Top five cases

Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) – Definition of the extent to which the court – in its inherent jurisdiction and under CPR 1998, r 5.4C – can direct release of court material to a non-party (eg media representatives; interested lawyers and researchers etc) (rejecting parties’ appeals from the Court of Appeal in Cape Intermediate Holdings etc [2018] EWCA Civ 1795 (31 July 2018) and following eg R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618.

R (A Child) [2019] EWCA Civ 895 (24 May 2019) – Permission to appeal refused; but Peter Jackson LJ took the opportunity to assert that the test for permission to appeal where the court is asked to consider that ‘the appeal would have a real prospect of success’ (CPR 1998, r 52.6(1)(a); FPR 2010, r 30.3(7)(a)).

Cowan v Foreman & Ors [2019] EWCA Civ 1336 (30 July 2019) – Appeal allowed against strike out of out of time Inheritance Act 1975 claim (Cowan v Foreman & Ors [2019] EWHC 349 (Fam) (25 February 2019), Mostyn J): appellant permitted to apply. The period before issue could be explained.

HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (Admin) (9 July 2019) – Guidance from the QB Divisional Court on finding guilt in committal proceedings; and a reminder that the purpose of committal proceedings is to protect administration of justice.

Re TT and YY [2019] EWHC 1823 (Fam) (11 July 2019), Sir Andrew McFarlane P in the Admin Court and Family Division – Successful application for end of anonymity order on a man who sought to be registered as ‘parent’ of a child after he transitioned to male gender. Only the anonymity of the child was to be protected.

Expert evidence: opinion and fact

Courts: no expertise outside law

The difficulties confronted by the Court of Appeal over opinion evidence in F (A Child) (Fact-Finding Appeal) [2019] EWCA Civ 1244 (16 July 2019) provides a reminder of the law on ‘expert evidence’. Though the case concerned children proceedings, the article starts with a summary of the law on evidence of opinion in civil proceedings generally followed by a review of such evidence in children proceedings in Re F.

Rules on opinion evidence are a creature of common law. A witness in any proceedings may only give evidence as to facts observed by him or her. This rule can be overridden in the case of evidence as to opinion given by a person where that witness’s expertise supersedes that of the court on a matter in issue in the case; and where the court accepts that such evidence is relevant it may be adduced if it would assist in disposal of one or more issues before the court.

The common law has been codified in Civil Evidence Act 1972, s 3(1) – equally for family as for all civil proceedings (though a distinction between civil and family would not have been made in 1972). Section 3(1) and (2) define on what basis such evidence can be admitted; but the Court of Appeal seems not to have considered Civil Evidence Act 1972, s 3.

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

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