A Court of Protection case that was heard last month provides invaluable guidance to all expert witnesses about what a letter of instruction that is compliant with best practices should contain
Bristol City Council v CC & Ors [2026] EWCOP 19 concerned the capacity of CC, a 23-year-old male with a complex social and mental health background.
The judge, Mrs Justice Theis DBE, was critical of the way in which documentation relevant to the case was passed to the expert witness.
She said: “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 difficult cases. The parties and the court need to ensure that all necessary steps are taken to enable them to undertake that important role.”
The Judge invited the parties to produce an agreed note on the instruction of experts in the Court of Protection, which they duly did.
When and how should an expert witness be instructed?
Rule 15 of the Court of Protection Rules 2017 provides guidelines on how experts should be instructed and reminds parties that expert evidence should only be requested when it is “necessary” for the court to reach a resolution. Similar instructions can be found in the equivalent procedural rules for civil, criminal and family cases.
Justice Theis said a draft letter of instruction to the expert should ideally be signed off by the court. If that is not possible then the court should have sight of the questions the expert is being posed.
What should a letter of instruction contain?
Outlining the requirements of the letter of instruction itself, Justice Theis warned against “lengthy and unwieldy recitations of the background facts and procedural history” or “detailed descriptions of previous case law”.
She said it should be “focussed and adapted to the facts of the particular case” and pointed to AMDC v AG and CI [2020] EWCOP 58 [28 (b)] in which Mr Justice Poole said the letter of instruction should “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”.
Mrs Justice Theis advised experts that if they are “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 clarification”.
She then outlined the key components that an expert witness should expect to see in their letter of instruction:
- Statement of facts and list of materials. A brief “neutral” statement of the facts of the case, with a list of the materials the expert is expected to assess before reaching an opinion.
- Core legal framework. As this case was a Court of Protection hearing, the judge suggested including the core legal principles of the MCA 2005, or a summary of those that are relevant to the case. Similar legal frameworks should be included for hearings in the criminal, civil, or family courts or specialist tribunals.
- Relevant decisions (if assessing capacity). Relevant decisions to be assessed, with the relevant information for each decision as agreed between the parties.
The judge said: “If required there can be a brief explanation as to where the information derives, providing confirmation that what the relevant information consists of should ultimately be a matter for the relevant expert to determine when undertaking the assessment and a reminder of the importance that the expert is not an arbiter of fact.”
- Details of person(s) the parties consider the expert should or may meet with.
- Confirmation as to whether proceedings are public or private and details of any transparency orders.
- Crucial information. Timescales for the report, the expert’s fees, dates of hearings/oral evidence, and confirmation of who the report will be disclosed to, with a reminder that parties have the right to pose questions of clarification.
What other documents should experts expect in the run up to a hearing?
The judge emphasised that questions to the expert after the filing of their report should only be done in accordance with COPR 2017 rules and must be for the purposes of clarification only. Similar rules would apply to other courts and tribunals, and the instructing parties would be well advised to include the corresponding information for their specific hearings.
Parties should then keep any further relevant evidence under review and make sure it is sent to the expert with a suitable covering message identifying the relevant documents.
Finally, if an expert is expected to give oral evidence at a hearing, they should be provided with:
- An updated court bundle at the same time as the bundle is lodged with the court.
- A list of documents that have been filed since their instruction, specifically highlighting which documents the parties want them to review in advance of giving oral evidence.
- Any further documents filed immediately prior to the hearing that the parties will likely refer to in questioning.
How can we help
This case provides invaluable guidance for experts who regularly give evidence on Court of Protection matters on what they should expect from a court-compliant letter of instruction. However, some of the general principles, in particular those relating to the neutrality of instructions and the sensible use of documents are also useful to experts giving evidence in other courts and tribunals.
Bond Solon provides training covering all the core skills and knowledge expert witnesses require to fulfil their role compliantly and effectively. We also offer university certified training programmes that are widely regarded as the industry gold standard by instructing parties.