Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 10
Instructing experts, and how long
does the leash have to be for the
acid test to be satis昀椀ed?
by Alex Ruck Keene KC (Hon), Barrister, Writer & Educator.
or some other reason), clear directions in the order for the
letter to be 昀椀nalised with the questions for the expert being
approved or overseen by the court.
Bristol City Council v CC & Ors [2026] EWCOP 19
(T3) is an important decision in which Theis J set out
a clear set of expectations about instructing experts.
It also includes what is now an increasingly standard
reminder that dividing care and residence decisions
can frequently be arti昀椀cial.
13. The letter of instruction must be focussed and adapted
to the facts of the particular case. Previous cases provide
helpful guidance (such as Poole J in AMDC v AG and
CI [2020] EWCOP 58 [28 (b)] “28… (b) [t]he letter
of instruction should, as it did in this case, identify the
decisions under consideration, the relevant information
for each decision, the need to consider the diagnostic
and functional elements of capacity, and the causal
relationship between any impairment and the inability
to decide. It will assist the court if the expert structures
their report accordingly. If an expert witness is unsure
what decisions they are being asked to consider, what the
relevant information is in respect to those decisions, or any
other matter relevant to the making of their report, they
should ask for clari昀椀cation.” [emphasis added]). Lengthy
and unwieldy recitations of the background facts and
procedural history are to be avoided, as well as detailed
descriptions of previous case law.
The guidance provided by Theis J requires
reproduction in full:
10. At the invitation of the court the parties have liaised
and produced an extremely helpful agreed note on the
instruction of experts in the Court of Protection. This issue
arose due to my concerns in this case as to (i) the length
of the letter of instruction sent to the expert in this case
(27 pages, 12 of which were under the heading ‘Legal
Framework’), and (ii) the incoherent management of the
way documents were sent to the expert prior to this hearing
by the local authority (he was sent large pdf bundles with
no agreed guide as to what he should read/focus on). As a
result, I hope what follows will be a useful reminder of the
framework in which experts are instructed in the Court of
Protection and how such instructions should be managed.
Those willing to give expert evidence in cases in the Court
of Protection are an invaluable resource to assist the parties
and the court reach decisions in these di昀케cult cases. The
parties and the court need to ensure that all necessary steps
are taken to enable them to undertake that important role.
14. It may be helpful to keep in mind the following as the
key components of a letter of instruction to an expert:
(1) A brief neutral statement of the essential facts of the
case.
(2) A list of materials with which they are being
provided for the purpose of the assessment the expert
is undertaking.
11. The procedural rules on the instruction of experts in the
Court of Protection are contained in rule 15 of the Court
of Protection Rules 2017 (‘COPR 2017’), as supplemented
by Practice Direction 15A. The test is ‘necessary’ (rule
15.3(1) COPR 2017) and permission may only be given
if it is necessary to assist the court to resolve the issues in
the proceedings and could not otherwise be provided by a
rule 1.2 representative or in a report pursuant to s49 MCA
2005 (rule 15.3(2) COPR 2017).
(3) A core legal framework setting out the central
principles of the MCA 2005, a summary of the relevant
sections of the MCA 2005 should su昀케ce and, if
appropriate, to re昀氀ect, for example, the order in which
a capacity assessment should be approached, as set out
by the Supreme Court in A Local authority v JB [2021]
UKSC 52. Any such references should be kept succinct
and must be relevant.
12. When making an application for the instruction of an
expert on form COP9 the application must include a draft
letter of instruction to the expert (rule 15.5 (2)(f) COPR
2017). The expectation is that the draft letter of instruction
should be approved by the court or, if not (due to urgency
EXPERT WITNESS JOURNAL
(4) If assessing capacity, identi昀椀cation of the relevant
decisions to be assessed, with the relevant information
for each decision as agreed between the parties. If
required there can be a brief explanation as to where the
8
JUNE 2026
