One expert is better than two

In BR v BR [2024] EWFC 11, Peel J in his role as head of the Financial Remedies Court delivered “a written judgment as one or two points of principle arise” on the use of single joint experts in financial remedy proceedings. This is an important decision for family lawyers on how cases should be conducted.

In the case of BR v BR, where substantial business interests had built up during the marriage, an issue came before Peel J that required examination of points in principle in respect of expert evidence in financial remedy cases. Both parties took the pragmatic view that the instruction of sole experts might be worth exploring, but Peel J re-stated the law set out in the Family Procedure Rules.

FPR 25.11 (1) states “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”.

Peel J outlined that “In their written submissions… counsel for both parties informed me of an agreement that the substantial business interests should be valued by two separately instructed sole experts, one for each party. I sent an email to counsel stating my provisional view that I should instead make a direction for the instruction of a Single Joint Expert (SJE). By the start of the hearing, the parties had agreed to move forward on the basis of my suggestion for a SJE report.”

He added that “The ES2….is provisional at this stage, but the total figure, on H’s case, is £183m, of which approximately £163m represents his estimate of the business values. W believes the figure for the business assets may be much higher.”

Peel J noted the broad, discretionary case management power afforded by PD25D, 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).

Civil lawyers will note that the phrase “Wherever possible” stands in contrast to civil procedural law: it features neither in CPR r 35.7, nor in the accompanying PD 35, para 7, which mandates taking into account “all the circumstances”, guided by a non-exhaustive list.

In BR v BR, Peel J drew attention to the five basic rules provided by the Financial Remedies Practice commentary to 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”.

He made it clear that he was “in no doubt that the right course of action is for a SJE instruction,” adding that, in his view, a single joint expert report is likely to give the parties a more secure evidential foundation for the FDR than two solely instructed reports.

In dealing with the meat of the issue: why experts should be single and joint, at least initially, Peel J stated eight reasons, which are described as a non-exhaustive list:

  1. Costs – one is usually cheaper than two.
  2. FPR 25.3 fixes the expert’s overriding duty to the court. That applies equally to all experts.
  3. Uniform information, documents and instructions will limit the ‘significant risk’ of reports reaching different conclusions.
  4. Shadow experts can be used alongside.
  5. FPR 25.10 is a mechanism for a party who is concerned the issues have not been fully addressed.
  6. The availability of Daniels v Walker applications (i.e. permission to rely on another expert).
  7. A court will expect parties to cooperate with requests for information made by the SJE.
  8. Costs and proportionality, even in high-value cases.

This judgment affirmed the current legal position, namely that “wherever possible”, an SJE should be directed, that being “the default position”, adding that 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.”

The case as a helpful reminder to family law practitioners of how the courts view the FPR in relation to expert witnesses: unless there are compelling reasons, one expert is better than two.

Written by Amelia Alston is an associate at Dawson Cornwell and Alex Laing is a barrister at Coram Chambers

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