Disclaimer: Amelia Alston and Alex Laing represent (with Simon Bruce, Sarah Jane Lenihan and Isabela Maculan of Dawson Cornwell and Richard Todd KC of 1 Hare Court Chambers) the applicant wife in BR v BR [2024] EWFC 11.

In BR v BR [2024] EWFC 11, Peel J took the opportunity, in his role as head of the FRC, to ‘do a written judgment as one or two points of principle arise’, at [1]. Specifically: the use of single joint experts in financial remedy proceedings. This is an important decision from Peel J informing family lawyers how cases should be conducted.

The 2013 reported judgment of SK v TK [2013] EWHC 834 (Fam) focused on the valuation of a successful technology business, Limelight. The parties instructed a single joint expert to value the company. The husband, unhappy with the report, sought permission to rely on his own expert. The wife responded in kind. The situation led Moor J to observe, at [69]:

‘Ironically, this meant that an attempt to reduce the accountancy evidence to one expert rather than two has led to there being three experts. This is not the first time this has happened before me. As far as I can see, it has become almost the norm in contested litigation in the Family Division where there is an issue as to the value of a privately owned business. It has led me to wonder whether it is ever appropriate to have a Single Joint Expert accountant in a High Court case. I do accept that it would be wrong to dictate the position without regard to those High Court cases that settle on the basis of just one Single Joint Expert. I will therefore say no more about it at the moment. It may be that there should be some research into this issue. Moreover, I am making absolutely no criticism of orders for Single Joint Expert accountants in non-High Court cases where such an order is not only sensible but absolutely essential to save costs. Equally, Single Joint Expert property valuations are always required, regardless of the value of the property concerned.’ (Emphasis added).

His Lordship’s view has provided foundation for many an argument that the use of sole, as opposed to single joint, experts can be preferable. Not least because of the ease with which a single joint expert case can mutate by trial into a three-headed Cerberus.

Such an issue came before Peel J in BR v BR [2024] EWFC 11. It is a high-value case that involves substantial business interests built up during the marriage. Both parties had taken the view that the instruction of sole experts might be worth exploring. In a crisp judgment, Peel J re-stated the law, in doing so noting that Moor J ‘did not refer to PD 25D and was not expressing a decided view’, at [16].

PD 25D

FPR 25.11(1):

‘Where two or more parties wish to put expert evidence before the court on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.’

That broad and discretionary case management power is honed by PD 25D, para 2.1:

‘Wherever possible, expert evidence should be obtained from a single joint expert instructed by both or all of the parties.’ (Peel J’s emphasis)

Children lawyers will note the same phrase: PD 25C, para 2.1.

That is in contrast to civil procedural law: ‘wherever possible’ features neither in CPR 35.7 nor the accompanying PD 35, para 7.1 (which mandates taking into account ‘all the circumstances’, guided by a non-exhaustive list).

Peel J drew attention to the ‘five basic rules’ provided by the Financial Remedies Practice commentary on FPR Part 25:

‘The fifth basic rule is that wherever possible expert evidence should be obtained from an SJE instructed by both or all of the parties.’

Case-law

As above, his Lordship has brought to a quietus family lawyers’ reliance on Moor J’s observation in SK v TK [2013] EWHC 834 (Fam). Instead, Peel J cited and preferred the judgment of his predecessor, Mostyn J, in J v J [2014] EWHC 3654 (Fam), at [8]:

‘One reason why so much forensic acrimony was generated, with the consequential burgeoning of costs, was that the Deputy District Judge at the first appointment on 9 November 2012 permitted each party to have their own expert to value the husband's business interests, notwithstanding the terms of Part 25 FPR which clearly stated then (and even more strongly states now – see PD 25D para 2.1) that a SJE should be used "wherever possible". Not "ideally" or "generally" but "wherever possible".’

Good reasons

At [18], Peel J dealt with the meat of the issue: why experts should be single and joint, at least initially. He stated eight reasons:

• Cost – one is usually cheaper than two.
• FPR 25.3 fixes the expert’s overriding duty to the court. That applies equally to all experts. But the reality (or the perceived reality) may be different: ‘the SJE has the inestimable advantage over a solely instructed expert of being truly independent. The solely instructed expert may … be partisan … because they take instructions from one party, are given information by them, build up a relationship with them and are paid by them’, at [18(ii)]. On this point, practitioners might recall the judgment of Mostyn J sitting in the Admin Court in Zuber Bux v The General Medical Council [2021] EWHC 762 (Admin), where at [23]–[33] and [44] his Lordship discussed the second definition of a ‘conflict of interest’: ‘where an expert witness’s opinions are… capable of being influenced by his personal interests’, at [23].
• Uniform information, documents and instructions will limit the ‘significant risk’ of reports reaching different conclusions, at [18(iii)].
• Shadow experts can be used alongside: for example, to assist in preparing the letter of instruction, raising FPR 25.10 questions, or sharpening questions for cross-examination.
• FPR 25.10 is a mechanism for a party who is concerned the issues have not been fully addressed.
• The availability of Daniels v Walker applications (i.e. permission to rely on another expert). This was the heart of Moor J’s observation in SK v TK [2013] EWHC 834 (Fam). Peel J preferred a ‘sunnier prognosis’:

‘Should either or both parties be dissatisfied with the SJE report, it is open to them to make a Daniels v Walker application for permission to adduce their own expert evidence. I appreciate that this may lead to additional expert evidence, but experience suggests that in many cases parties are content, broadly, to accept the SJE's opinion, and those cases where there is a legitimate justification for additional sole expert evidence will be rare. It does not therefore automatically follow that to instruct an SJE will inevitably lead in due course to three experts (the SJE and two sole experts). Occasionally, one party will seek to rely on the SJE, and the other will reject the SJE's conclusions. In that case, if permission for the dissatisfied party to obtain their own expert is granted, there will be two experts. In those rare cases where both parties secure permission for their own expert, it may nevertheless remain helpful for the court to have the benefit of independent SJE evidence at trial. I am therefore unpersuaded that the court should routinely assume a gloomy prognosis about the future trajectory of expert evidence even before the SJE route has been explored.’ [18(vi)]

• A court will expect parties to cooperate with requests for information made by the SJE. So, the appointment of the SJE ‘usually remove[s] the need for lengthy questionnaires to address company matters’, at [18(vii)].
• Cost and proportionality, even in high-value cases. (There being overlap here with Peel J’s first point.)

Conclusions

Drawing that together, his Lordship affirmed the current legal position as being:

• Wherever possible, an SJE should be directed, that being ‘the default position’.
• The ‘bar for departing from the default position is set high. A high degree of justification is required to persuade the court to do so’, at [17].

Bearing in mind costs, proportionality and the overriding objective, parties are more likely to reach agreement if there is a joint approach to instructing experts as Peel J expressed his ‘gratitude to the parties and their advisers for their constructive and collaborative approach’, at [20].

This is a helpful reminder and a case that should be kept neatly folded in your back pocket (for which read digitally saved on your iPad Mini).