Expert evidence in a judicial review which ‘goes beyond comment and expresses [an] opinion’ about a decision under challenge is inadmissible, the High Court has said in dismissing an application to adduce a witness statement which consists ‘almost entirely of opinion evidence’.

In R (Gardner and another) v Secretary of State for Health and Social Care and others, the court was asked to rule on the claimants’ application to adduce an additional witness statement from an expert in a JR about the government’s alleged failure to protect care home residents from coronavirus.

The claimants sought to rely on a third statement from Adam Gordon, professor of the care of older people at the University of Nottingham, which was opposed by the defendants and refused in a ruling last week.

Lord Justice Bean said opinion evidence is ‘admissible in ordinary civil claims with the permission of the court if it is reasonably required to resolve the proceedings’, but that the courts ‘have been much less willing to admit expert evidence’ in JR claims. He refused the defendants’ application to ‘excise’ passages of statements already filed by the claimants, saying the court’s treatment approach to statements ‘which take the form of argument … should not be excessively purist’. ‘It would be disproportionate to require the claimants’ evidence to be re-submitted or to embark on a line-by-line editing process ourselves,’ he said.

The claimants had also argued that, if there were grounds for declining to allow the admission of expert opinion as a matter of domestic law, the position was different as regards claims under the ECHR, in particular in relation to claims under Article 2.

Bean said the claimants should be able to refer ‘not just to the material on which the defendants say they based their decisions, but to all other material to which, with proper enquiry, they had or could reasonably be expected to have had access’.

However, there must be ‘some “principles of restraint” that delimit the intensity of the court’s review’, Bean said. If the court was ‘required to consider opinion evidence on all the issues raised in this case, whether contemporaneous with the decisions under challenge or not, this claim would become entirely unmanageable’. It would amount, the judge said, to ‘a public inquiry without oral evidence’.