What to consider when instructing experts in financial cases

Family analysis: Suzanne Todd, a partner in the Family Law team at Withers LLP, examines what impact the changes relating to the use of expert evidence in family proceedings have had in practice.

What impact has the change regarding the 'necessity' of expert evidence had?

The President of the Family Division, Sir James Munby, has made it very clear that he views the changes to the rules relating to experts to be a vital part of the reforms to the family justice system. Expert evidence has been a recurring theme frequently addressed in his updates on family justice reform (now totalling 13) and I was particularly drawn to the comment in his third 'View from the President's Chambers' on the process of reform of expert evidence: 'what is required is a major change of culture'. Now in place for 18 months, the changes to the rules relating to the use of expert evidence in family proceedings--and not least the change to the test for permission to adduce (from an expert being 'reasonably required' to 'necessary')--have brought about a 'major change' in the way family law practitioners approach the use of expert evidence in their cases.

The introduction of 'necessity' was first highlighted by Munby P in Re TG (A Child) [2013] EWCA Civ 5, [2013] 1 FCR 229, on 22 January 2013, some nine days before the changes became legally effective, and set the scene when the President said that the test of what is 'necessary' sets a significantly higher hurdle than the old test of expert evidence that was 'reasonably required'.

Soon after, in Re H-L (A Child) [2013] EWCA Civ 655, [2013] All ER (D) 112 (Jun), Munby P said:

'The short answer is that 'necessary' means necessary [...] This court said it "has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is  demanded rather than what is merely optional or reasonable or desirable."' (para [3])

What is your experience of applications for permission to adduce expert evidence?

The aim of the reforms was to streamline the approach to expert evidence in family proceedings. This was achieved in a number of ways. As already discussed, by the introduction of the 'necessity test' but also with the reconfiguration of the Family Procedure Rules 2010, SI 2010/2955 (FPR 2010) so that the decision of whether to adduce expert evidence has become a case management concern with the insertion of the words 'controlling the use of expert evidence' being inserted at FPR 2010, SI 2010/2955, 1.4. A strict timetable now governs the timing of the application for permission to adduce and my experience is that this has meant that the question of expert evidence is now at the forefront of minds at the beginning of a case, and certainly in the run up to the preparation for the first appointment/first hearing dispute resolution appointment (FHDRA). While there are advantages to preparing for the involvement of experts at an early stage of a case, practitioners need to be aware that all issues may not have been crystallised by the first appointment/FHDRA stage and must be alive to the development of additional points or further areas which require expert evidence, as the case progresses.

Case law over the last 12 months has consistently demonstrated the court adopting a stricter approach to all aspects of case management decisions. Most notably Munby P in the public law case of Re W (Children) (Strict Compliance with Court Orders) [2014] EWFC 22, [2014] All ER (D) 25 (Aug):

'I protest in the most emphatic terms against the seeming assumption that the parties can, without reference to the court, agree an alteration in a timetable set by the Family Court. They cannot and they must not.' (para [17])

Although in this case Munby P was concerned with adherence to the timetable set out in a court order, an easy analogy can be drawn in relation to the timetable set out in the FPR 2010 in relation to expert evidence and any practitioner who fails to engage with the timings for applications for permission to adduce expert evidence should prepare themselves for an unwielding response from the court.

Do you have any tips regarding best practice when preparing a letter of instruction to an expert?

The introduction on 1 October 2014 of new national standards for family court experts working in children proceedings means that family practitioners have a responsibility to ensure that all experts instructed are fully apprised of the higher standards that will apply to their reports.

The standards, set out in the revised FPR 2010, PD 25B, include making sure that the expert:

  •  has knowledge appropriate to the court case
  • has been active in the area of work or practice and has sufficient experience of the issues relevant to the case
  • is either regulated or accredited to a registered body where this is appropriate
  • has relevant qualifications and has received appropriate training, and
  • complies with safeguarding requirements

So my top tip is to review and update the wording of all letters of instruction to make sure all the new standards are specifically addressed and properly explained.

How can experts and family lawyers work best together?

Expert evidence can be highly contentious. It is important to ensure that initial instructions are as good as possible and although the time frame set out in FPR 2010 may mean that this time consuming work will need to be considered at the start of a case, it will pay dividends in the long run. A well instructed expert should be confident to work within an appropriate framework of instructions. Obviously there are times when parties are simply unable to agree with the outcome of a report by a single joint expert. In SK v TK [2013] EWHC 834 (Fam), Moor J was concerned by the expense and time cost that was brought about by the refusal by both parties to agree with the findings of the single joint expert. In that case Moor J commented that the disagreement had led not to the appointment of one expert, or even an expert for each party but three experts--the single joint expert plus an expert instructed by each party.

What is your view on meetings between experts where there isn't a single joint expert?

As identified by Moor J in SK v TK, single joint experts are now the 'norm' in family proceedings. Where the issues are extremely complicated and the matter is being heard in the High Court, Moor J's view is that there may be a cogent argument for the instruction of two experts to report on one issue. Any meetings between those experts should adhere to the overall case management principles including proportionality and efficiency and my view on meetings will depend on the circumstances in each case.

How should issues such as an expert changing their mind be approached?

Where the assets include an ongoing business concern it may be appropriate to re-evaluate an expert report and update the outcomes. I believe that the new national standards for the appointment of experts in children proceedings will raise the level of expert evidence to ensure that expert reports achieve best possible standards. The answer to this question is that it will depend on the circumstances of the case, but, in the appropriate circumstances, an expert should be given the opportunity to make appropriate corrections and revisions.

Suzanne Todd is a highly experienced family lawyer able to advise on the full range of issues which arise on the breakdown of a relationship. She has particular expertise in dealing with complex financial cases often with an international or trust related element. Suzanne has a particular interest in Anglo-Italian cases and is recognised in the marketplace for her niche Italian practice.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.

 

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