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Expert witness reports are often necessary in the course of proceedings to assist the Court in determining issues which require special expertise and usually where the parties are unable to agree those issues between them. In financial proceedings, for instance, experts are regularly called upon to prepare reports to determine the value of real property and businesses. In children’s cases, the Court may often direct that an expert psychologist assess and interview a family and prepare a report to assist in determining the most appropriate living arrangements for children in light of parental separation.
Part 25 of the Family Procedure Rules 2010 (“FPRs”) and the accompanying Practice Direction 25A set out the applicable rules and guidelines with respect to the appointment, duties and obligations of expert witnesses in family law Court proceedings. Part 25 is reflective of Part 35 of the Civil Procedure Rules (“CPRs”) which was applied in respect of experts in family law proceedings until the FPRs came into effect in this jurisdiction on 6 April 2011.
Rule 25.7 of the FPRs sets out the Court’s power to direct that expert evidence be given by a “Single Joint Expert”; in other words, a single expert witness who is instructed jointly by the parties rather than each party instructing their own separate expert. The fees of a Single Joint Expert are normally shared equally between the parties.
In the vast majority of cases the appointment of a Single Joint Expert will be the starting point for the determination of issues requiring expert evidence. The introduction of the CPRs was intended to bring about the end of “trial by separate experts”, with Courts being under a duty to restrict the use of expert evidence. Following the introduction of the CPRs, as a general principle the Courts have promoted the use of Single Joint Experts sought to resist parties to a case instructing their own experts.
However, it is arguable that the Court of Appeal decision of Daniels v Walker [2000] 1 WLR 1382 has significantly eroded the foundations of the general principle regarding Single Joint Experts. In this case, the Court of Appeal stated that where there is a Single Joint Expert report, a party is not necessarily prevented from obtaining a further report from their own expert. Subject to the Court’s discretion, a party should be given leave and permitted to obtain further a further expert report when they can satisfy the following criteria:
- The reasons for the party wanting a further report are legitimate rather than “fanciful”. This is a broad test and the reasons do not need to be significant;
- The sums involved in the case are substantial and the issues are complex, or at least the cost of obtaining a further expert report will not be disproportionately expensive within the context of the case;
- The party has asked the Single Joint Expert address the issues of concern through appropriate questions, and this has not resolved the issues.
A party will normally be solely responsible for the fees of their own separate expert.
In light of the decision in Daniels v Walker, the instruction of a Single Joint Expert may be considered to be the first stage in a more extensive valuation process that can potentially develop over the course of litigation.
Yet does this mean that the continuing standard practice in family law proceedings of obtaining a report from a Single Joint Expert has been rendered obsolete and is now effectively a “waste of money”? Furthermore, can the use of Single Joint Experts deliver a fair and just outcome?
Certainly the decision of the Court of Appeal may have encouraged parties to seek the appointment of their own experts, which in turn gives rise to the possibility of increased costs in the already expensive process of litigation. Yet it would be a step too far to suggest that Single Joint Experts are now a simply a waste of time and money and produce unsatisfactory outcomes.
Firstly, the authority in Daniels v Walker is not a guarantee that a party may instruct their own separate expert whenever they choose. The criteria set out by the Court of Appeal in that case must be satisfied, and most importantly, the decision to grant leave to party to obtain a further expert report remains within the discretion of the Court. There will be many instances in which the Court will not grant permission as it considers further expert evidence to be unnecessary, inappropriate, or too expensive in the context of the case.
The primary basis of support for the continued use of Single Joint Experts by divorce lawyers on both sides, however, is that in a significant proportion of cases the parties will not seek to adduce further evidence from their own expert. There are various reasons for this; for instance, both parties may be satisfied with the report of the Single Joint Expert and accordingly will have no reason to seek a “second opinion”. Even where a party is somewhat dissatisfied with a Single Joint Expert report, they may dismiss the idea of seeking a further expert evidence on the basis that a more favourable report will not greatly affect the overall outcome of the case or the costs of obtaining further expert evidence will outweigh the potential advantages. Frequently one party will be happier with a report of a Single Joint Expert than the other; however, the latter party will nonetheless be able to “live” with that report.
Further, an inherent risk of seeking a second expert report is that there is no guarantee their opinion will be favourable to the party instructing them. There will often be a range of acceptable expert opinions in respect of an identical scenario (for instance, the potential market value of a property), and even a fundamentally flawed expert approach or methodology may still produce a similar result to that produced using the correct approach or methodology. Single Joint Experts and separate experts alike have an overriding duty to the Court to provide an opinion that is entirely independent of either party.
It therefore follows that in most cases where neither party wishes to depart from the Single Joint Expert report and obtain a further expert report, it can be assumed that the use of the Single Joint Expert has indeed been effective in producing an outcome that is acceptable to the parties and therefore fair and “just”. Overarching this is the likely cost saving advantage; usually the fees of a Single Joint Expert which are shared between the parties equally will be less overall than the fees of separate experts paid for by each party respectively.
Of course, it must not be forgotten that the use of Single Joint Experts represents an evolution of the law and procedure from a time when the use of separate experts was the norm. A proliferation of experts within a case can significantly increase the time, costs and complexity of the issues at hand – and can also ultimately fail to assist the Court in making a decision and produce a result that is fair and just. There are, one might suggest, sound reasons for the continued use of Single Joint Experts which have been developed over many years of litigation experience and history.
Finally, what might occur in a scenario where there is a Single Joint Expert and it has been identified that there are legitimate errors and other issues within their report?
Unless the Court directs otherwise, the Single Joint Expert will continue their role in the case and the parties will remain jointly and severally liable to pay the fees arising from the Single Joint Expert’s work – even if those fees are incurred by the Single Joint Expert in “rectifying” their initial report (for instance, after a party has raised questions of the expert).
If the parties are genuinely dissatisfied with the work and level of fees of the Single Joint Expert and cannot resolve these issues with the expert directly, they may seek to obtain appropriate relief outside the family law proceedings.
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