Instruction of experts

Reported cases regarding the instruction of experts are relatively uncommon. There are two recent decisions of Peel J: one deals with the importance of instructing single joint experts; the other deals with challenging the evidence of a single joint expert, commonly known as Daniels v Walker applications.

Instructing single joint experts

Rule 25.11 of the Family Procedure Rules 2010 (FPR) provides that the court may direct that evidence is to be given by a single joint expert. This is supplemented by paragraph 2.1 of PD25D which provides that ‘wherever possible’ expert evidence should be obtained from a single joint expert.

In J v J [2014] EWHC 3654 (Fam), Mostyn J emphasised the importance of ‘wherever possible’. However, in SK v TK [2013] EWHC 834, Moor J questioned whether it was appropriate to have a single joint expert accountant in a High Court case, where the challenge of their evidence may lead to three experts being instructed.

In his recent decision in BR v BR [2024] EWFC 11, Peel J concluded that:

a. Wherever possible, a single joint expert should be directed rather than two independent experts. That is the default position.

b. The bar for departing from the default position is high. There must be a high degree of justification to persuade the court to do so.

Peel J then set out a number of reasons why a single joint expert should be instructed. His non-exhaustive list includes the following:

a. It is usually cheaper to instruct one expert, rather than two.

b. The single joint expert has the advantage of being truly independent. Peel J emphasised experts’ overriding duty to the court in accordance with rule 25.3 of the FPR.

c. The single joint expert prepares a report in accordance with one joint letter of instruction, whereas two experts may be instructed on different bases.

d. Nothing prevents either party from instructing shadow experts to assist in drafting the joint letter of instruction or raising questions.

e. Questions can be asked of the single joint expert after provision of their report.

f. Should either party be dissatisfied with the single joint expert report, then it is open for them to make a Daniels v Walker application – see below.  

g. The instruction of a single joint expert will usually enable that expert to decide what documents they need and to request them. This is usually the most practical way to deal with the difficult issue of company disclosure. Appointing a single joint expert will therefore usually remove the need for lengthy questionnaires addressing company matters. The requisite information can be requested by the single joint expert. This is a useful point for practitioners to cite when faced with a long questionnaire seeking disclosure in respect of a business.

h. Where the court is considering expert evidence, issues of costs and proportionality arise. 

Challenging the evidence of a single joint expert  

This process arises from the decision of Daniels v Walker [2000] 1 WLR 1382. In that decision, Lord Woolf MR proposed the following approach:

a. If one party is unhappy with the expert’s report, then he or she can put questions to the expert. That is now enshrined in rule 25.10 of the FPR.

b. If the expert’s answers to the questions do not resolve the position, then either party may seek a direction from the court with regard to calling further evidence.  

Guidance was given on Daniels v Walker applications by Peel J in GA v EL [2023] EWFC 187. He summarised the position as follows:

a. The starting point for a Daniels v Walker application is rule 25.4 of the FPR – that is, expert evidence may not be put before the court without permission of the court. Permission will only be granted where the evidence is ‘necessary’.

b. An application of this nature is an application to adduce expert evidence and therefore it must meet the test of necessity.

c. Where a party is seeking to adduce expert evidence, they must advance reasons which are not fanciful.

d. It will then be for the court to decide, in the exercise of its discretion, whether to permit the party to adduce such further evidence.

e. In terms of the relevant factors for the court to consider, Peel J referred to the list in Cosgrove & Another v Patterson [2001] CPLR 177, which he described as non-exhaustive and which included the following:

• The nature of the issue or the issues;
• Number of issues between the parties;
• The reason a new expert is wanted;
• The amount at stake and, if 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 the calling of a new expert would cause;
• Any special features of the case; and
• The overall justice to the parties in the context of the litigation.  

In conclusion, Peel J said that he would draw particular attention to the words ‘the overall justice to the parties in the context of the litigation’ which he felt encapsulated neatly the court’s task.  

It is important for practitioners to remember that Daniels v Walker applications are uncommon and the court is unlikely to grant permission for a second report lightly. Timing is also crucial: the later an application is brought in the proceedings, the more challenging it may prove to be to secure the court’s permission.

There is also the cart-before-the-horse issue of having to obtain a second report, or at least a compelling outline summary of a second expert’s opinion, before the Daniels v Walker application is brought. On the one hand, it is inconceivable that a court may grant permission for a second expert without their evidence before the court. Yet, on the other hand, a party risks incurring the costs of instructing the second expert where that evidence may not be allowed by the court.

 

Andrew Newbury is a partner at Hall Brown Family Law, Manchester