I was representing at a tribunal which adjourned because we ran out of time to take the patient’s evidence. All other witnesses had given evidence and we agreed that most would not attend the reconvened hearing. However, the patient now wishes to submit independent evidence and potentially call an independent witness at the reconvened hearing. Do i need the permission of the MHT to do this?
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I would seek permission (or just notify via CMR1) just in case.
I assume the “independent evidence” is not expert evidence? As that would definitely require express permission.
Thank you Zac- yes it is expert evidence. Why do you think that we would need express permission?
To instruct an expert you’d probably need a longer listing window unless you’ve got one lined up already. I think the need for permission is implied in rule 15(1)(c) TPR 2008, but someone else may be able to give a more specific answer.
Although if I’m wrong about the need for express permission being required, it’s still good practice to notify and obtain directions for any reports and the schedule of agreement/disagreement. This is especially true in a part-heard hearing.
Another issue on my mind is whether it’s a fair hearing if the witnesses are unable to give addendum written/oral evidence in light of the expert evidence. In my experience it’s unlikely they’ll change their mind, but they should be afforded the chance to consider and update their views accordingly. I think case managing will be tricky as you’d explicitly need addendum reports addressing the expert evidence if the witnesses don’t attend (and even then, you or the Tribunal might consider that further examination of witnesses is required).
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Thank you Zac -that is very helpful as R15 (1) (c) had passed me by.
There is a reasonably long listing window and I can get expert opinion and submit to the RA for a joint report to be filed, as I have someone who can complete a report quickly.
I suppose that I am reluctant to ask for permission in case it is refused but also as time is short to get a response from MHT . I have previously filed independent evidence without seeking permission (as I was unaware of the rule!) but obviously this is an unusual situation.
I probably will seek permission as if it is refused this may lead on to an appeal in any event.
Best of luck! The dicta in OO v CNWL NHS FT [2024] is likely to be helpful in your CMR1.
I don’t see any reason why you wouldnt be able to obtain independent evidence seen as the case isn’t concluded but you’ll undoubtedly have a full further hearing with evidence from the RA if you decide to serve it.
I’ve never even thought of asking permission to obtain or serve independent expert evidence. I can see that it’s different when a case is part heard, but it’ll probably still be easier to ask for forgiveness than permission. Maybe try to get the expert’s opinion before the report to help you deal with it quickly. Without checking, I bet every chamber has the same rule as quoted above, and it’s likely more relevant to others.
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The following is not advice. It is shared experience and opinion. No liabilities for adverse consequences are accepted.
Independent evidence of the kind referred to comes in two forms: a) independent professional witness b) independent expert witness evidence. Most people are not as OCD like me about the fine and important differences.
Just based on experience over too many years, I’ve seen lawyers submit expert witness reports (EWR) without seeking permission of the MHT. I’ve not seen any of those ‘thrown out’, for not seeking permission first.
My understanding of MHTs (LTT) is that they are normally quite flexible and receptive. But things may have changed. Someone update me please.
Quality of EWR as well as the nature of instructions are crucial as you will know. When I reviewed on average 40 EWRs per year in a different Tribunal some years ago, I learned a great deal. I won’t be afforded space here to share all that - but it’s published online elsewhere.
A dodgy EWR is the worst case scenario - this is the type that costs the ‘standard £500 per pop’ - done within 48 hours - because speed is everything - and contains a mental state examination of about 100 words that says nothing; accompanied by poor reasoning. But.. but they’re usually very well formatted to make them look impressive.
Dodgy reports are dealt with nicely; less weight is given to them in any ‘Statement of reasons’, and of course they can lose the case entirely just for being ‘dim’.
Introducing a new independent witness is an interesting one. On some occasions I had to ask permission to introduce a psychologist who worked with the patient (because strangely enough LLTs do not normally ask for psychologist reports). But then other Tribunals have been very accommodating without any formalities.