BR v BR [2024] EWFC 1130 January 2024

Published: 31/01/2024 15:56

Peel J. When should a single joint expert (SJE) be instructed rather than two or more separately instructed experts in financial remedy proceedings?

Both parties sought to separately instruct sole experts, one for each party, to value a highly successful businesses built up by H during the marriage. It was not in dispute that expert evidence was needed in this case as to the value, tax and liquidity of the businesses to assist the court in resolving the proceedings. It was common ground between the parties that this was a case for equal division, subject to potential arguments about liquidity and structure. Peel J indicated that his provisional view was for an SJE to be instructed. The parties agreed to move forward on this basis. The judgement provides useful guidance from paragraph 7, on the principles to instructing experts in financial remedy proceedings.

PD 25D provides that ‘wherever possible expert evidence should be obtained from an SJE instructed by both or all of the parties’. The judge referred to J v J [2014] EWHC 3654 (Fam) where Mostyn J noted that one reason for the forensic acrimony, with the consequential increased costs, was because at the First Appointment each party was permitted to have their own expert value the husband’s business interests. This was despite FPR Part 25 stating that an SJE should be used ‘wherever possible’ and not ‘ideally’ or ‘generally’.

Peel J concluded that the default position is that, wherever possible, an SJE should be directed rather than giving permission for two or more experts to be solely instructed. A high degree of justification is required to persuade the court to depart from this default position. Paragraph 18 provides a non-exhaustive list of a number of good reasons why the default position should be instruction of an SJE. Some of these include it being cheaper to instruct an SJE than two experts; the option of making a Daniels v Walker application for permission to adduce their own expert evidence where either or both parties are dissatisfied with the SJE report, though ‘those cases where there is a legitimate justification for additional sole expert evidence will be rare’; two separate experts are subject to less oversight by the court than the SJE whose remit, instructions and provision of information are ultimately to be decided by a judge if the parties do not agree, etc.

The judge was satisfied that there was no good reason to depart from the default position in this case. Both parties were unlikely to agree the valuation figures provided by the other so two experts would be unfruitful. The SJE report would give the parties more secure evidential foundation for the FDR than two solely instructed reports, and both will continue to have the aid of their shadow accountants.

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