‘For Reasons Which Are Not Fanciful’ – Daniels v Walker Applications in Financial Remedy Cases

Published: 13/10/2022 12:37

More than 22 years after it was decided, there remains no reported decision in a financial remedies case in which a court has provided guidance in relation to whether or not to grant a so-called Daniels v Walker [2000] EWCA Civ 508, [2000] 1 WLR 1382 application for the instruction of a second expert when one party is dissatisfied or otherwise unhappy with the report of a single joint expert.

Likewise, the Family Procedure Rules 2010 (SI 2010/2955) (FPR) do not make specific provision for the instruction a new expert. Where the FPR are silent the court may have regard to the Civil Procedure Rules 1998 (SI 1998/3132) (CPR) and case-law decided thereunder although this is only by analogy and the court is not bound by that authority.1

Daniels v Walker was a personal injury case where quantum alone was in issue. The relevant procedural framework was said by Lord Woolf MR to be CPR Part 1 (the overriding objective), CPR 35.1 (the duty of the court to restrict expert evidence), CPR 35.6 (the ability of the parties to put questions to experts) and CPR 35.7 (the power to direct that evidence is to be given by a single joint expert). All have their FPR equivalents. Lord Woolf continued as follows:

‘[27] … Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.

[28] In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.

[29] In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the position in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report.’

As to the Human Rights Act 1998 argument raised on appeal – European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 – Lord Woolf MR stated:

‘[24] Article 6 could not possibly have anything to add to the issue on this appeal. The provisions of the CPR, to which I have referred, make it clear that the obligation on the court is to deal with cases justly. If, having agreed to a joint expert’s report a party subsequently wishes to call evidence, and it would be unjust having regard to the overriding objective of the CPR not to allow that party to call that evidence, they must be allowed to call it.’ (original emphasis)

In Cosgrove & Anor v Pattison [2001] CPLR 177 – a neighbour dispute – Neuberger J (as he then was) identified the following non-exhaustive list of factors to be taken into account when considering an application to permit a further expert to be called:

  • ‘The nature of the issue or issues.
  • The number of issues between the parties.
  • The reason the new expert is wanted.
  • The amount at stake and, if it is not purely money, the nature of the issues at stake and their importance.
  • The effect of permitting one party to call further expert evidence on the conduct of the trial.
  • The delay, if any, in making the application.
  • Any delay that the instructing and calling of the new expert will cause.
  • Any other special features of the case.
  • The overall justice to the parties in the context of the litigation [an “all-embracing” factor].’

On the facts, the appeal against the first instance refusal of the second expert was allowed. It was said that the issues, although not very substantial, were properly matters for expert evidence and the amount at stake was not insignificant. Moreover, the new expert report called into question some of the joint expert’s conclusions and if a new expert held a contrary view to that of the joint expert, there could be sufficient justification for permitting the new expert to be called, particularly where there were grounds for thinking that the joint expert might be wrong. Accordingly, it was right to allow the appeal but only on terms that the costs order in the court below was not interfered with.

In Peet v Mid-Kent Healthcare NHS Trust [2001] EWCA Civ 1703 – a personal injury case which gave rise to the issue of whether or not a conference could be conducted by the claimant in the presence of the joint experts without the consent of the defendants – Lord Woolf MR stated as follows:

‘[28] … where parties agree that there should be a single joint expert, and a single joint expert produces a report, it is possible for the court still to permit a party to instruct his or her own expert and for that expert to be called at the hearing. However, there must be good reason for that course to be adopted. Normally, where the issue is of the sort that is covered by non-medical evidence, as in this case, the court should be slow to allow a second expert to be instructed.

[29] … the fact that the sums at stake may be substantial does not justify the departure from the general approach in relation to single experts which I have just sought to indicate. If there is an issue which requires cross-examination, or requires additional evidence, that is one thing. But the court should seek to avoid that situation arising, otherwise the objectives of having a single expert will in many situations be defeated.’

In Kay v West Midlands Strategic Health Authority (4 July 2007, unreported) – a claim which arose out of the neonatal treatment of the claimant shortly after birth – HHJ MacDuff QC (as he then was) sitting as a Deputy High Court Judge said as follows:

‘Where a party requests a departure from the norm and makes what one can term a Daniels v Walker application, all relevant circumstances are to be taken into account but principally the court must have its eye on the overall justice to the parties. This includes what I have called the balance of grievance test. The application will only succeed in circumstances which are seen to be exceptional and to justify such a departure from the norm.’

In Bulic v Harwoods & Ors [2012] EWHC 3657 (QB), the parties had originally instructed a single joint expert to opine on the reasons why an engine had failed. The claimant alleged it was caused by inadequate servicing and an inherent defect in the vehicle. The defendants argued it was due to an unknown third party over-filling the engine oil. The claimant lost confidence in the single joint expert and, a week before trial, applied to appoint his own expert. The application failed at first instance but succeeded on appeal. Eady J reviewed authorities including those referred to above before stating as follows:

  • ‘What represents justice between the parties will very much depend upon the facts of each case’ [16].
  • ‘the saving of time and money is likely to assume greater significance in inverse proportion to the centrality of the issues’ [16].
  • ‘Where the court is concerned with a relatively “peripheral” issue as in Kay, it is likely to be only in unusual circumstances that the services of a single joint expert will be dispensed with’ [16].
  • ‘the court is less likely to be ready to dispense with a single joint expert where the evidence is of a non-technical nature’ [17].

On the facts, the issue to which the expert evidence went was far from peripheral. It was fundamental to the resolution of the main issue between the parties. It was also technical, and the court was likely to obtain more assistance from comparing two experts on technical matters than where the issue involves matters of ‘personal judgment, discretion and general impression based on experience’ [21]. Further, bearing in mind the ‘balance of grievance’ test in Kay, the claimant’s sense of grievance would be quite understandable if he had to go through a trial of the critical issue on liability while being barred from introducing and having the criticisms properly evaluated [24]. In addition, where the expert evidence was of a technical nature and far from peripheral, care had to be exercised when refusing to permit the appointment of a further expert on the basis that the case was not sufficiently ‘substantial’ [29] and whether or not litigation is ‘substantial’ cannot be solely determined by reference to the amount claimed [28].

Most recently in Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB) – a noise-induced hearing loss claim – Martin Spencer J upheld the Recorder’s refusal to allow the claimant’s application to adjourn a trial and to rely on an expert acoustic engineering report in place of a single joint expert report. He concluded that the correct approach had been elucidated by Lord Woolf in Daniels v Walker, who stated that permission to obtain the desired new expert evidence could be permitted for ‘reasons which are not fanciful … subject to the discretion of the court’ [21]. The words ‘subject to the discretion of the court’ were deemed to be ‘important’ in this context given that, as Eady J said in Bulic, the Court of Appeal ‘did not intend to apply any straitjackets to the court’ [21]. The judge further emphasised that as Eady J had pointed out what represents justice between the parties will be very fact-sensitive, so that it may be distracting to focus too analytically on the reasoning in other cases, however authoritative, where the facts were not truly comparable [22].

Martin Spencer J said that the Recorder had approached this discretionary exercise (‘balancing the interests of the parties, taking into account not only the overriding objective but also the interests of justice generally in seeing that cases are decided expeditiously, at proportionate cost and without undue inconvenience to other parties’) in an ‘impeccable’ fashion, having demonstrated awareness that:

  • the evidence of the single joint expert was central to the issues in the case;
  • the evidence of the single joint expert was technical;
  • the claimant had good reason for wishing no longer to rely upon that report;
  • the application was being made at a late stage in proceedings;
  • but for the non-availability of a judge, the case would have been decided in November 2019 without any such application being made;
  • the single joint expert had been chosen by the claimant;
  • the claimant had raised questions of the single joint expert on two occasions;
  • if the claimant’s application was acceded to, what would otherwise would have been fast-track trial would become a multi-track trial with a significant increase in costs; and
  • the application had been made at a late stage and, if allowed, would involve the breaking of a fixture with potential waste of court time and inconvenience to other parties.

In addition to the above civil cases there are several reported Daniels v Walker applications in the context of Children Act 1989 applications. It must always be remembered when considering such cases that whereas expert evidence in proceedings other than children proceedings is governed by FPR 25.4, provision relating to the control of expert evidence in children proceedings is now contained in Children and Families Act 2014, s 13,2 which states inter alia as follows:

‘(1) A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings. ...

(5) In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.

(6) The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly. ... ’

In W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543,3 Wall LJ (as he then was) stated as follows:

‘[35] We were provided with a bundle of authorities by the parties. In my judgment, the only decision which is directly on the point is the decision of this court in Daniels v Walker [2000] 1 WLR 1382. This decision must, in my judgment, be viewed with a modicum of caution from a family perspective, since experts in family proceedings (particularly in the field of paediatric neuroradiology) are a precious and scarce resource, whereas in civil proceedings experts in less arcane fields are not only more numerous, but also more willing to undertake forensic work.

[36] With that important proviso, the question for this court in Daniels v Walker was what approach judges should adopt when a single expert who has been jointly instructed makes a report, and one side or other is unhappy with the report. … Giving the leading judgment, the Lord Chief Justice, Lord Woolf, neatly encapsulated the point in the following two paragraphs:

“27 …

28. … ” ...

[39] The proviso which I have identified finds appropriate expression, in my judgment, in the submission made by counsel for the parents … They rightly recognise that it would be both unrealistic and unnecessary for the court to permit parents to obtain a second opinion in every discipline. Such a second opinion, accordingly, should in my judgment normally only be permitted where the question to be addressed by the chosen expert goes to an issue of critical importance for the judge’s decision in the case. For the reasons I have already given, the instruction of experts in family cases needs to be stringently controlled by the court, but in the circumstances described by Messrs Hayden, Rowley and Hayer in the extract I have cited, they are in my judgment right to submit that the court should be slow to decline an application for a second expert.

[40] It is, I think, also important to remember that a second opinion does not necessarily mean additional litigation and substantial additional litigation costs. If the second opinion confirms the first, my experience is that the issues in the case addressed by the two experts are likely to be radically reduced if not eliminated. However, as is self-evident, any medical consensus must be a true medical consensus – that is with each medical discipline making its proper contribution … ’

In Re SK (Local Authority: Expert Evidence) [2007] EWHC 3289 (Fam), [2008] 2 FLR 707, Sumner J stated:

‘[53] It is clear that where medical evidence in a care case becomes pivotal and is contained in one report, which by the nature of its expertise is difficult to challenge in the absence of a further expert report, the court should not be slow to decline a second expert. There was, however, a need for stringent control of experts in children cases and a second medical report agreeing with the first one may of itself be of value in reducing or eliminating issues, (see W v Oldham Metropolitan Borough Council [2006] 1 FLR 543 and Re J (Care: Assessment: Fair Trial) [2007] 1 FLR 77). ...

[54] Amongst the factors to be taken into account are that experts are in short supply and their reports are expensive for whatever body is funding them. There has to be a good reason to justify any further reports once the first one has been obtained.

[55] There is, at the heart of this dispute, a debate about the circumstances in which a report adverse to one party permits that party to obtain a second report. In medical cases the position is relatively clear and is highlighted in the two cases to which I have referred. It can be put in the form of a question: is the report pivotal and can there be effective cross-examination without another report?

[56] In non-medical cases such as this, the position can be set out in this way. (1) The court will look at the report itself and ask the following questions: does it appear either fundamentally flawed or biased in its approach; is it otherwise wrong, unbalanced or unfair? If the answer to any one of these points is yes, then that may be by itself, sufficient ground to justify a second report. If the answer is no, then the next question is the role played by the report. Is it pivotal and can it be challenged without the need for a further expert report? The answers to those questions may be determinative. Finally, the impact of a further report on the timetable for the hearing may have to be considered.’

In R v A Local Authority and Others [2011] EWCA Civ 1451, [2012] 1 FLR 1302, Wall P summarised the position:

‘[33] Family proceedings relating to children are unique in the control which the judge has over expert evidence. No expert can be instructed without judicial permission. It follows that a judge now decides each application for a second opinion on its merits by reference to the criteria set out in the overriding objective, the Practice Direction[3] and the Family Procedure Rules 2010 (the FPR). In each case it is a matter of judgment, and the critical questions remain: do I need this report in order to enable me to deal justly with the case? What will the additional expert add to the case?

[34] In my judgment, this is essentially what Sumner J was doing in Re SK (Local Authority: Expert Evidence). Speaking for myself, I do not find the division into the medical and the non-medical particularly helpful. The message I take from Re SK (local authority: expert evidence) is the judge’s statement that “there has to be a good reason to justify any further reports once the first one has been obtained.”’

In NT v LT (Return to Russia) [2020] EWHC 1903 (Fam), [2021] 1 FLR 773, Cobb J acceded to a father’s application to adduce his own expert evidence following the instruction of a single joint expert:4

‘[126] Notwithstanding the egregious failure to comply with the requirements of statute, and the rules, my reasons for allowing the admission of this second report are as follows:

(i) The issue of whether the father breached the mother’s “rights of custody” is central to the application. It is certainly of sufficient importance to my determination of the application that I would be slow to shut out ostensibly credible evidence relating to it;

(ii) I was satisfied from what I had heard that Ms Pavlova possesses the relevant qualifications to produce a reliable report;

(iii) While accepting that section 13 Children and Families Act 2014 should be applied strictly to control expert evidence, the discretion afforded to the court – in line with the factors listed in section 13(7) – is still broad;

(iv) There was time to obtain the views of the SJE on the report of Ms Pavlova before the case was argued.’

In the decisions in Children Act 1989 applications for a second expert report, the scarcity of experts was therefore identified as a factor which may be relevant. However, this issue is unlikely to arise in relation to (say) forensic accountancy evidence in a financial remedies case. Further, in such cases the courts have drawn a distinction between issues which are critical (or pivotal) and issues which are not in determining the admissibility of a second expert report. This distinction usually arises in relation to the number of different medical experts in different specialist fields in order to determine the nature and causation of injury. This distinction is unlikely to be an issue in a financial remedies case when the court is most often concerned with a binary valuation issue. Further, and in any event, both Re W and Re SK both predate the introduction of the ‘necessity’ test and NT v LT concerned a case where it was contended that the single joint expert had erred on a question of material fact (a review of Russian law).

The reported financial remedy cases which refer to a Daniels v Walker application having been made are relatively few.5 As noted above, none has provided guidance in relation to whether or not to grant the application.

In R v K (Financial Remedies: Conduct) [2018] EWFC 59, [2019] 1 FLR 847, Baker J (as he then was) stated:

‘[31] … On 12 January 2018, the wife filed a Daniels v Walker application … seeking permission to rely on a report by Mark Gillespie of FTI Consulting in respect of the husband’s business interests on the basis that there was a very substantial dispute as to the value of those assets. … At a hearing on 16 January, at which the husband was represented by junior counsel, I allowed the wife’s Daniels v Walker application and gave consequential directions obligating the husband to provide information to Mr Gillespie and directing an experts’ meeting …’

In FW v FH [2019] EWHC 1338 (Fam), Cohen J stated:

‘[14] … By agreement, Grant Thornton (GT) were instructed to produce a valuation which came in in October 2018. Both sides were dissatisfied with the conclusion and each applied successfully for permission to instruct their own valuer. W has accordingly instructed Jon Dodge of Walton Dodge and H instructed Faye Hall of Smith and Williamson. … ’

Most recently in E v L [2021] EWFC 60 Mostyn J stated:

‘[13] The husband took strong exception to the evidence of Mr Isaacs, and I allowed him to adduce his own accountancy evidence from Mr Steve Taylor. In order to maintain equality of arms I allowed the wife to adduce her own accountancy evidence from Ms Fiona Hotston Moore … ’

None of these judgments makes it clear why the Daniels v Walker application was granted (save that R v K refers to a ‘very substantial dispute’, FW v FH refers to the parties being ‘dissatisfied’ and E v L states that H took ‘strong exception’ to the single joint expert report).

What (if anything) can be drawn from the above authorities when considering a Daniels v Walker application in the financial remedies context?

First, what represents justice between the parties is very fact-sensitive and a financial remedy case is by its very nature different from a civil case and, therefore, notwithstanding that both the CPR and FPR rules are similar (if not in places identical), the reasoning in the civil cases is not authoritative. A financial remedies case is also different from a children case even if (most of) the same procedural rules apply. In this context, it is of note that in Re Webster (No 2), Norfolk County Council v Webster [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, Munby J (as he then was) stated:

‘[39] … Speaking for myself, I do not find the comparison with civil proceedings particularly helpful, and have come to the conclusion that such an exercise is outwith the scope of this appeal. I do not, accordingly, propose to analyse the civil decisions or say anything about them.’

Secondly, and notwithstanding the above caveat, Bulic suggests that where one party would feel that justice has not been done because that party was not allowed its own expert in a case where: (1) there are properly arguable grounds for criticising the report of the single joint expert; and (2) the technical issue in question is fundamental or central to the case as opposed to being peripheral, an additional expert might well be appropriate.

However, the latter of these two criteria begs the question as to what is ‘technical’ as opposed to a matter of ‘personal judgment, discretion and general impression based on experience’ in a single joint expert report particularly one where (say) the valuer has provided an opinion in relation to a private company. In this context it is important to recall Martin v Martin [2018] EWCA Civ 2866, [2019] 2 FLR 291, per Moylan LJ:

‘[91] … The conclusion and guidance given [in Versteegh v Versteegh [2018] 2 FLR 1417] were that such valuations need to be treated with caution. Although in my view the guidance is clear, given the arguments in the present case I propose to quote at some length from that case which in turn quoted what I had said, sitting at first instance, in H v H [2008] 2 FLR 2092. King LJ said:

“[136] In H v H [2008] 2 FLR 2092, Moylan LJ highlighted the fact that the vulnerability of valuations had been specifically recognised by the House of Lords in Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186. Moylan LJ said:

‘[5] The experts agree that the exercise they are engaged in is an art and not a science. As Lord Nicholls of Birkenhead said in Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186, at para [26]: “valuations are often a matter of opinion on which experts differ. A thorough investigation into these differences can be extremely expensive and of doubtful utility”. I understand, of course, that the application of the sharing principle can be said to raise powerful forces in support of detailed accounting. Why, a party might ask, should my “share” be fixed by reference other than to the real values of the assets? However, this is to misinterpret the exercise in which the court is engaged. The court is engaged in a broad analysis in the application of its jurisdiction under the Matrimonial Causes Act 1973, not a detailed accounting exercise. As Lord Nicholls of Birkenhead said, detailed accounting is expensive, often of doubtful utility and, certainly in respect of business valuations, will often result in divergent opinions each of which may be based on sound reasoning. The purpose of valuations, when required, is to assist the court in testing the fairness of the proposed outcome. It is not to ensure mathematical/accounting accuracy, which is invariably no more than a chimera. Further, to seek to construct the whole edifice of an award on a business valuation which is no more than a broad, or even very broad, guide is to risk creating an edifice which is unsound and hence likely to be unfair. In my experience, valuations of shares in private companies are among the most fragile valuations which can be obtained.’

[137] Moylan LJ was referring to a business valuation, as was the Court of Appeal in Wells v Wells [2002] 2 FLR 97. Here the court is more specifically concerned with valuations relating to property developments. For the reasons given by Lewison LJ at paras [184]–[195], the same principle found in Miller and H v H applies as much to development land valuation as to conventional business valuations, perhaps even more so given the dramatic effect that even a small adjustment in a variable can make to a valuation and given the inherent unpredictability, described by Lewison LJ, in relation to property development projects.”

Lewison LJ said:

“[185] The valuation of private companies is a matter of no little difficulty. In H v H [2008] 2 FLR 2092 Moylan J said at para [5] that ‘valuations of shares in private companies are among the most fragile valuations which can be obtained’. The reasons for this are many. In the first place there is likely to be no obvious market for a private company. Secondly, even where valuers use the same method of valuation they are likely to produce widely differing results. Thirdly, the profitability of private companies may be volatile, such that a snap shot valuation at a particular date may give an unfair picture. Fourthly, the difference in quality between a value attributed to a private company on the basis of opinion evidence and a sum in hard cash is obvious. Fifthly, the acid test of any valuation is exposure to the real market, which is simply not possible in the case of a private company where no one suggests that it should be sold. Moylan J is not a lone voice in this respect: A v A (Ancillary Relief: Property Division) [2006] 2 FLR 115, at paras [61]–[62]; and D v D and B Ltd [2007] 2 FLR 653 (both decisions of Charles J).”

[92] Given the proximity of the decision in Versteegh v Versteegh, and also, as it happens, given that my views have not changed from what I said in H v H, I can see no reason why we should depart from the conclusions and guidance set out in the former, namely that valuations of private companies can be fragile and need to be treated with caution. Further, it accords with long-established guidance and, I would add, financial reality.’

It might well be argued that those elements of a single joint expert’s opinion that are matters of judgment and discretion – for example, weighted averages for EBITDA6 and/or choice of multiplier – where different experts may validly hold different views and where alternative calculations can easily be done without the need for further expert input – are not ones where disagreement would justify a Daniels v Walker application succeeding and the challenging party should be limited to cross-examining thereon. Conversely, if the objection is a technical one – for example, the construction of a particular accounting standard or a matter of foreign law – this may justify the application succeeding.

It is clear, however, from [88]–[92] of E v L that the issues between the experts included maintainable earnings and multiple (leading to enterprise value), surplus assets (leading to equity value), net asset value and value of the goodwill. Assuming these were some of the opinions to which the husband had objected, this may undermine the distinction between matters of judgement/discretion and technical objections.

Thirdly, it does not follow that just because a case has a modest financial value, it would not be considered to be sufficiently substantial to warrant the instruction of an additional expert. In Bulic, Eady J stated that ‘substantial’ did not necessarily mean substantial in a financial sense and indicated that there was no hard and fast rule confining parties to using a single joint expert in modest value cases where the relevant evidence was both technical and likely to be determinative.

The editors of the Financial Remedies Practice 2022–23 (Class Legal, 2022) – which include Mostyn J – state at paragraph 25.90 that if a party remains dissatisfied with a single joint expert’s opinion after receipt of replies to written questions under FPR 25.10 ‘the court should not grant permission to adduce expert evidence on the same subject on a party’s behalf until there has been a meeting between the SJE and the proposed new expert with the Daniels v Walker application following thereafter. No authority is cited for this proposition, but it may be a reference to the following passage from Lord Woolf MR in Daniels v Walker itself:

‘[31] In a case where there is a substantial sum involved, one starts, as I have indicated, from the position that, wherever possible, a joint report is obtained. If there is disagreement on that report, then there would be an issue as to whether to ask questions or whether to get your own expert’s report. If questions do not resolve the matter and a party, or both parties, obtain their own expert’s reports, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken until there has been a meeting between the experts involved … ’

It is respectfully suggested that it is difficult to imagine this happening in most (if not all) financial remedy cases, given that the party who is not dissatisfied with the single joint expert’s report is unlikely to agree to the other party’s (until now) ‘shadow’ expert meeting with him/her until the Daniels v Walker application has been determined. The editors of Rayden & Jackson on Relationship Breakdown, Finances and Children (LexisNexis) share this view, stating at paragraph 13.189 that it may be that the requirement for the experts to meet before a decision is made by the court as to what evidence can be adduced at final hearing ‘either requires adaption in financial remedy proceedings, or in effect gives rise to a two stage process where first an application needs to be made for the single joint expert to meet the proposed new expert, and then subsequently a decision is made as to whether evidence can be admitted from the proposed new expert’.

The question of whether or not a ‘shadow’ report should be obtained in advance of the hearing of a Daniels v Walker application is something of a circular one. On the one hand, it is usually necessary to instruct such an expert to comment upon the initial report as without such an opinion it is difficult to show that the single joint expert’s report is flawed or otherwise incorrect. On the other hand, no party may put expert evidence before the court in any form without the court’s permission (FPR 25.4(2)). In practice, most applicants obtain such a report and seek to rely upon the same. However, even if the ‘shadow’ expert’s report is not to be adduced in evidence, the production of such information will in all likelihood be required to persuade a court to allow further evidence to be filed.

Separately, there is the question as to whether the issue of ‘necessity’ – which since 31 January 2013 has been the test required for the admission of expert evidence in place of the earlier ‘reasonably required’ – is also required for a Daniels v Walker application. Is it the case that permission is not generic in that each piece of expert evidence is specifically considered within the context of FPR 25.4(2) and (3) with no distinction drawn between a first application and any subsequent Daniels v Walker application, or is it that the test of necessity does not apply as the court has already determined the need for expert evidence on the issue and in Daniels v Walker the court is concerned with the broader case management considerations set out above?

Although both of these positions are arguable, it is submitted that the latter is to be preferred given that: (1) on a Daniels v Walker application the court is not deciding whether expert evidence is required on a given issue ‘to assist the court to resolve the proceedings’ but by whom the evidence is to be given; and (2) the CPR equivalent of ‘necessary’ – which remains ‘reasonably required’ – was not referred to in the criteria used in any of the civil cases referred to above.

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