BY v GC [2025] EWFC 226

Judgment date: 24 July 2025

https://caselaw.nationalarchives.gov.uk/ewfc/2025/226

Mr Nicholas Allen KC (sitting as a deputy High Court judge). In Financial Remedy proceedings, Nicholas Allen KC refused H’s Daniels v Walker application to rely on expert evidence that valued the main business interests at £7.1–£7.3m less than the Single Joint Expert (SJE).

Background

At a First Appointment in July 2024, the court directed the parties to jointly instruct PwC as a Forensic Accountant to value the business interests of both H (19 interests) and W (4 interests).

PwC provided their valuation reports for ‘Company A’ and other entities in April 2025 and for ‘Company B’ in May 2025. The reports were extensive, totalling over 315 pages, with a further 60 pages of responses to questions from the parties in May 2025. PwC valued one of H’s business interests at £27m and another at £1.3m.

Following a Private FDR appointment in June 2025, H instructed a new expert, FRP Advisory, on 10 June 2025. The report was received on 1 July 2025. FRP valued the first company at approximately £7.1–£7.3m less than it had been valued at by PwC and valued the second company £816,000 less than PwC. On the same date, H’s application to rely on the new report was made.

Application

H applied for permission to rely on FRP’s report. He claimed that the report was necessary for the fair computation of assets and criticised the report of PwC based on the methodology and assumptions used to value the two businesses.

W resisted H’s application on a number of grounds including the proximity of the final hearing, and the fact that H’s expert relied on management accounts to May 2025 that were not available to PWC. She contended that it would be wrong to challenge the SJE’s methodology based on evidence they had not seen.

The law

For over two decades, the Court of Appeal decision in Daniels v Walker [2000] EWCA Civ 508 (a civil case) has been the primary authority on this issue.

Lord Woolf MR established that a party is not automatically barred from obtaining a second expert report simply because they agreed to an SJE. He set out a general approach, stating that an SJE report is merely the ‘first step’ and that a dissatisfied party should be permitted to obtain further evidence if their reasons for doing so are ‘not fanciful’. The ultimate test being whether it would be unjust to refuse permission, considering the overriding objective of the CPR.

The case of GA v EL provided much-needed guidance for financial remedies practitioners. Peel J’s judgment established a clear, multi-layered test that begins with the core principle of necessity.

The starting point for any application to adduce further expert evidence is FPR 25.4(3), which states that permission can only be given if the evidence is ‘necessary to assist the court to resolve the proceedings’.

Peel J adopted the definition of ‘necessary’ from children’s cases, describing it as a concept that ‘has the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable’.

To determine if the evidence is ‘necessary’, the court will then apply the principles from Daniels v Walker and subsequent civil cases, with a key focus on a list of non-exhaustive factors derived from Cosgrove & Anor v Pattison & Anor [2001] CPLR 177:

(1) the nature of the issue or issues;

(2) the number of issues between the parties;

(3) the reason the new expert is wanted;

(4) the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance;

(5) the effect of permitting one party to call further expert evidence on the conduct of the trial;

(6) the delay, if any, in making the application;

(7) any delay that the instructing and calling of the new expert will cause; and

(8) any other special features of the case; and

(9) the overall justice to the parties in the context of the litigation.

Peel J emphasised that the ‘overall justice to the parties’ is the ultimate task of the court and is highly fact sensitive. In GA v EL, W’s application for a second expert was refused because it was made too late, would have prejudiced the Husband, and the difference in valuation (£1.6m on assets of £35m) was deemed ‘relatively small’ and unlikely to have a material impact.

This contrasts with earlier civil cases like Bulic v Harwoods & Ors [2012] EWHC 3657 (QB), which suggested that a second expert might be appropriate where the issue is fundamental and technical, as opposed to being peripheral and a matter of ‘personal judgment’. However, the judgment in GA v EL and the subsequent case of BR v BR [2024] 2 FLR 217 suggest that financial remedy courts may take a more cautious approach.

Judgment

The judge rejected W’s argument that H had delayed in bringing the application. The application was filed shortly after the pFDR appointment and the completion of the new expert’s report. The judge found it was reasonable for H to wait until after the pFDR as the focus at that time should have been on settlement negotiations, not on incurring costs for an application that might not have been needed.

The judge accepted that H’s reasons for challenging the SJE’s report were not ‘fanciful’. The FRP Advisory report was described as ‘full and reasoned’, providing a clear critique of the SJE’s methodology and figures for both Company A and Company B.

Despite this, the judge concluded that the new expert’s report was not ‘necessary’ to resolve the proceedings.

• Valuation as a ‘broad analysis’: The judge cited Moylan J (as he then was) in H v H [2008] 2 FLR 2092. The purpose of valuations in this context ‘is to assist the court in testing the fairness of the proposed outcome’ and ‘not to ensure mathematical/accounting accuracy, which is invariably no more than a chimera’. A business valuation ‘is no more than a broad, or even very broad, guide’.
• The court’s role: It is the court, not the expert, that determines the final value. The SJE’s report, despite the significant difference in figures (around £7.1m–£7.3m), was considered sufficient for this purpose.
• Equality of arms: Granting H’s application would inevitably entitle W to instruct her own expert to maintain ‘equality of arms’. The judge agreed with the principle that a party should not be forced to rely on an SJE if the other party is allowed their own expert.
• Risk of delay: Granting permission would make a final hearing adjournment ‘all but inevitable.’ The tight timeframe before the final hearing, coupled with W inevitably needing to instruct a new expert from a ‘cold start’ meant it was highly unlikely all experts could produce reports, meet, and prepare a joint statement in time. This would be unjust and unfair to both parties, given the already lengthy procedural history of the case.
• Proportionality: While H’s approach of challenging only two of 23 entities valued in PWC’s report was seen as proportionate, this would mean not all entities were valued as of the same date, which could lead to unfairness.

H’s application was refused. Instead, the court adopted W’s secondary position, that the additional information (the May 2025 management accounts) should be sent to the SJE (PwC) for them to consider and provide an updated view on the valuation methodology. This was seen as a proportionate approach that would still allow the court to have a more complete picture without the need for a full second expert and the associated delays.

The costs of the application were reserved to be dealt with at the final hearing.