Is it right that Single Joint Experts can do a poor job and then hold the parties to ransom over correcting their mistakes?

Vardags Solicitors are a Top Divorce Lawyer based in Central London that specialise in complex and substantial cases

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:

  1. 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;
  2. 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;
  3. 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.

To find out more about Vardags Solicitors, visit their website.

What makes a top divorce lawyer?

Vardags Solicitors are a Top Divorce Lawyer  based in Central London that specialise in complex and substantial cases

Lawyers who specialise in divorce require skills and knowledge that are not often associated with commercial lawyers. Whilst skills such as communication, working as a team or working to deadlines are needed by any legal specialist, a lawyer dealing with relationship dissolution needs more than these attributes to cope with the challenging situations that may arise.

Understanding the complexities of adult relationships is key. A top lawyer must be capable of dealing with clients undergoing such emotional upheaval with dignity and respect. This will include being capable of appreciating significant factors in the divorce outside monetary issues, namely children who would be adversely affected by a drawn out adversarial litigation.

A divorce lawyer must accept that there are two halves to any divorce proceedings, and the desires of each party will likely conflict. Compromise will be necessary and that needs to be communicated to the client, whose vulnerable position may cloud their view of the situation. Many clients will come seeking to withhold everything from their former partner, motivated by spite or fear of losing what their earnings. The client needs to be reassured that they will be protected, and with competent legal professionals, each party should be left content. Total reluctance to negotiate with the other party will only lead to negative effects to any children involved, who have been shown to suffer as a result of the uncertainty and upheaval involved in divorce proceedings.

Expert knowledge of Family Law is an obvious requirement. The lawyer needs to be able to advise their clients about the existence of the “clean break” principle, the precedents set by cases such as White v White and other relevant case law, s.25 of the Matrimonial Causes Act 1973, and other legal principles which would affect the clients position in the event that the issue should come before a judge. Even before this, the top divorce lawyer will need to be able to convey the availability of alternative dispute resolution such as mediation or collaborative law, especially with the weight given to the ADR process by the government, the courts and organisations such as Resolution. Aside from being the cheaper option, ADR is often considered the more holistic method of dealing with a divorce, with financial, housing and custody issues being looked at as one complete issue.

It is important that the client has faith in their lawyer to do the best they can, to protect their interests and to provide the best legal advice. To ensure this the lawyer must show a determined and professional demeanour throughout the process.

The main issue to be dealt with by a lawyer dealing with divorce is turning a sensitive situation into something that the client is happy with and as a result the client will be able to move forward and build a better future. If a lawyer can do this, then they would be considered a top divorce lawyer.

Is relying on the integrity of a solicitor appropriate in Hildebrand cases? Is lodging documents with a third party solicitor the answer?

Vardags Solicitors are a Top Divorce Lawyer  based in Central London that specialise in complex and substantial cases

The Court of Appeal decision of Imerman v Tchenguiz [2010] 2 FLR 814 confirmed various principles, including but not limited to the following, in summary:

  1. The need to ensure full and frank disclosure in family law proceedings does not allow a party, or another person on their behalf, to breach the other party’s right to confidentiality of their documents / information.  Likewise, the process of disclosure does not entitle a person to breach the law (for instance, committing theft, or hacking into a person’s computer in order to obtain their confidential documents).
  2. It is an actionable breach of confidence for a party, without authority, to review confidential documents belonging to another person.  This is also the case where the party makes and retains copies of the confidential documents, or provides copies of those documents to a third party, or seeks to use the information contained in the confidential documents.
  3. In principle, spouses enjoy rights of confidence as against the other in respect of documents and information which would otherwise be confidential if they were not married.
  4. Confidence may be lost in respect of documents that are left out in the open in the matrimonial home (for instance, on the “shared desk”).
  5. For the reasons outlined above, “self-help” disclosure is not acceptable.  Where a party has concerns that the other party intends to conceal or dispose of assets, or destroy or conceal evidence, then there are remedies available to that party in the form of search and seize, freezing, preservation, and other similar orders.

If a party does have possession of confidential documents, they must promptly return those documents to the other party and destroy any copies they have made.  If the party is represented by solicitors, those solicitors must not look at the documents nor retain copies (or else they may be required to cease acting for their client).  In default of compliance, the aggrieved party will be able to seek appropriate injunctive relief with possible costs and other consequences.

However, there are corresponding obligations in respect of the owner of the confidential documents.  The breach of confidence does not override the obligation to make full and frank disclosure of all relevant documents within the family law proceedings.  If the owner of the confidential documents is represented by solicitors, those solicitors are obliged to take reasonable steps to consider and advise on the documents, with a view to ensuring that their client complies with their obligations of disclosure.  If the owner of the documents ceases to instruct their solicitors, then those solicitors are obliged to retain copies of the documents unless otherwise agreed or ordered.  These obligations are designed to ensure the preservation of the confidential documents, with a view to a party complying with their obligations of disclosure or alternatively the other party seeking the production of the documents by way of an application to the Court.

Clearly a great deal hinges upon the solicitors for each party doing the “right” thing and following the correct protocol.  Is it therefore appropriate to rely on the integrity of the solicitors who are obliged to retain the Imerman documents?

Unless there is significant and persuasive evidence to suggest otherwise, it must be assumed that the relevant solicitors will comply with their obligations to retain copies of the documents and advise their clients to make any relevant disclosure.  Solicitors are under strict professional and ethical obligations, and their duties to the Court extend beyond even their duties to their client.

This, however, may be of little comfort to the party who came across the confidential documents, particularly where the matter is fiercely contested as can often be the case in family law cases and associated litigation.

An alternative approach going forward might be to require that Imerman documents be lodged with independent third party solicitors.  This may provide the party returning the confidential documents with some peace of mind and ensure that the issue is dealt with, at least at first instance, by solicitors entirely independent of the parties and removed from the adversarial process.

However, one can also perceive some possible difficulties with this approach.  For instance, to what extent would the third party solicitor be involved in the process of reviewing, considering and advising on the relevance of the documents?  It may be that they are simply required to prepare a list of the confidential documents, but this in turn gives rise to further questions regarding the subsequent disclosure of that list and the appropriate procedure going forward.  Finally, the use of independent third party solicitors is likely to increase the costs of the case by some degree (which could be significant depending on the extent of their role) and will be even more problematic when the parties are self-represented or on legal aid.

An alternative to the use of independent third party solicitors might be for the confidential documents to be lodged with and considered by a Judge, who can then make appropriate directions.  This idea is also problematic for various reasons, not least because wide-spread use of such an approach might inundate the Court system with significant numbers of applications in respect of documents with little or no relevance to the case.

There is little doubt that the issue of Imerman documents and related procedure is and will continue to be fraught with difficulty – and many agree that greater direction and clarity is required to enable parties and practitioners alike to navigate this challenging legal obstacle course with greater confidence.

To find out more about Vardags Solicitors, visit their website.