Experts in Financial Remedy Proceedings: An Untapped Resource?

After the breakdown of a marriage, a multitude of issues can arise in quantifying assets as part of resolving the family finances. Expert evidence can cut to the heart of these issues, providing impartial, clear analysis for parties to base negotiations on as part of reaching a settlement.

Potential examples for the utility of such an expert report include: disputes over the valuation of the former matrimonial home; the valuation of a business that a party seeks to advance an interest in; a pensions on divorce expert when there are sizeable pensions that need to be considered as part of equalisation or income or capital upon retirement; or confirmation regarding any capital tax gains liability upon the sale of a second property (if a party seeks for a property to be sold as part of a settlement).

Where one of the above is the sole or main issue to be determined (particularly in “small-money” cases), an early application for expert evidence may assist in resolving matters at an early stage, saving subsequent time, stress, and costs for both parties.

The relevant procedural rules regarding the use and instruction of experts are at FPR 25 (particular reference is made to FPR PD25B and FPR PD25C as regards children proceedings).

Permission from the court is required before any obtained report can be disclosed into ongoing proceedings, however permission from the court is not required to obtain the report in the first instance (in contrast to children proceedings).

An application to put a report before the court needs to be made as soon as practically possible (FPR 25.6), and in any event, before the First Directions Appointment. Any application is governed by FPR 25.7, which outlines the necessary contents of an application (with a draft order to be included alongside the below):

  • Details of the field in which the expert evidence is required;
  • If possible, the name of the proposed expert;
  • The issue/s the expert evidence will cover;
  • Whether the expert evidence could be obtained from a single joint expert; and
  • Any matters per FPR PD25B as are relevant (for example, any preliminary enquiries undertaken of an identified expert and/or a draft letter of instruction if not already composed).

FPR 25.4(2) reaffirms the above, and FPR 25.4(3) confirms the test for permission being granted being whether the evidence is “necessary” to assist the court to resolve the proceedings.

The relevant threshold has been considered in Re H-L (A child) [2013] EWCA Civ 655. It can generally be categorised as falling somewhere between the terms of admissible, ordinary, useful, reasonable, or desirable, and at the other end, indispensable, with the focus being what assistance the evidence would give the court (with there not being a distinction between children cases and financial remedy cases in this regard).

As regards assistance, FPR 25.5(2) lists factors for the court to consider as part of determining the application:

  • the issues to which the report would relate;
  • the questions the court would require the expert to answer;
  • the impact that granting permission would have on the timetable, duration, and conduct of the proceedings;
  • the timing of the application (i.e., whether it was made at an early stage or at a late stage in proceedings) with reference to FPR 25.6; and
  • the costs of obtaining any report.

Overall, any application complying with the above should to allow the court to feel at ease in granting the application (particularly if any possible concerns as above have already been addressed in the application, and there has been co-operation with the other side in the process).

To summarise, expert evidence can often be overlooked until the First Directions Appointment or even sometimes the Financial Dispute Resolution Hearing. By that time, significant costs have already been incurred and any further delays may not be favourable to either party or in line with the overriding objective, despite any potential value of obtaining a report as alluded to above.

I am delighted to be assisting my colleagues Holly Coates and Nicole Jennings in the upcoming webinar “Family Finance Webinar: Make the FPR Work For You” which will take place remotely on 21st June 2022; 4-5:30pm, where I will give a short talk on instructing experts, expanding on the points made in this article. The link is here if you would like to read more about it and if you would like to join, do not hesitate to contact us at clerks@becket-chambers.co.uk to reserve your place.