The direction of a Single Joint Expert should be the default position in the Family Court
The Case
The parties had separated in 2023 after 25 years of marriage. It was common ground between the parties that prima facie this was a case for equal division of the marital assets (provisionally valued by the husband’s FRC Efficiency Statement at £183 million), subject to potential arguments about liquidity and structure.
The parties agreed to move forward on the basis of the judge’s provisional view that he should make a direction for a Single Joint Expert ('SJE'). The judge provided a helpful explanation of his view that the direction of an SJE is the default position in the Family Court.
The rules on Single Joint Experts
Family Procedure Rule ('FPR') 25.11(1) states that:
“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”.
Paragraph 2.1 of the PD25D (and paragraph 2.1 in PD25C with respect to children proceeding) provides:
“Wherever possible, expert evidence should be obtained from a single joint expert instructed by both or all the parties” [emphasis added].
The words “Whenever possible” do not appear in the equivalent Civil Procedure Rules ('CPR') provisions at CPR 35.7 and PD 35.7. This clearly indicates that the words “Whenever possible” were included for family proceedings, in contra distinction to the practice in civil procedure.
The judge also noted that the ‘fifth basic rule’ of the Financial Remedies Practice in its commentary on FPR Part 25 (pages 554 to 577) states that:
“The fifth basic rule is that whenever possible expert evidence should be obtained from an SJE instructed by both or all of the parties.”
The judge’s view
The judge concluded that:
i) Wherever possible, an SJE should be directed rather than giving permission for two or more experts to be solely instructed. This is the default position.
ii) 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 judge noted that there are a number of reasons why the default position should be instruction of an SJE including (as a non-exhaustive list):
i) Instructing one expert is usually cheaper than two,
ii) All experts have an overriding duty to the court (FPR 25.3),
iii) The SJE prepares a report in accordance with one joint letter of instruction, jointly provided information and one series of questions. With two or more experts,
there is a risk the court may be faced with reports that are not just different in conclusions, but based on different information, questions and instructions,
iv) The parties can instruct shadow experts,
v) The SJE can be asked questions after the provision of the report (FPR 25.10),
vi) If either or both parties are dissatisfied with the SJE report, they can make a Daniels v Walker application for permission to adduce their own expert evidence.
Experience suggests that this will only happen occasionally,
vii) Instruction of an SJE will usually enable the expert to decide what documents they need and request them, removing the need for lengthy questionnaires, and
viii) Whenever the court is considering expert evidence, issues of cost and proportionality arise.
Learning points
Learning points for instructing parties are:
- The direction of an SJE should be the default position in the Family Court,
- A high degree of justification is likely to be required to persuade the court to give permission for two or more experts to be solely instructed,
- Instructing parties can (and in higher value cases probably should) instruct shadow experts to assist in (for example):
Drafting the joint letter of instruction,
Raising questions for the SJE once the report has been received, and
Supporting the cross-examination of the SJE.
Learning points for expert witnesses are:
- Expert Witnesses working in family law should be particularly conscious of the need to fully understand the role and duties of an SJE.
538