Expert evidence

Courts rely on expert evidence where an expert opinion is necessary.

In financial cases, the most common kind of expert evidence is valuation evidence in relation to properties.

Sometimes an expert is necessary to value a company.

Courts often receive expert evidence from financial experts in relation to the value of pensions.

Sometimes an accountant is asked to consider what tax will be due if properties or shares are sold or transferred.

The key to understanding expert evidence in these proceedings is to look at Part 25 of The Family Procedure Rules.

You need to have the court’s permission to rely on expert evidence (rule 25.4).

The court will not allow a party to rely on expert evidence unless the court is of the opinion that the evidence is necessary to assist the court to resolve the proceedings: (rule 25.1).

Wherever possible the evidence should be obtained from a single joint expert (rule 25.11).  In other words both parties instruct the expert.  In practice once a jointly instructed expert has reported, courts are likely to go along with what the expert has reported.  The purpose of jointly instructed experts is to reduce costs and prevent a “battle of the experts”.

Rule 25.7 sets out the procedure for applying for permission for there to be expert evidence and the information which has to be provided.  The reality however, is that it depends from court to court whether the court will insist on all of this information being provided.  Courts are very aware of saving time and cost.  If both sides appear at a first directions appointment and ask for the instruction of a pensions expert and the court thinks it is necessary, many courts will allow the instruction of an expert without all of the procedural hoops being jumped through.  The safest course of course is to abide by the rules.

The rules require that the application for permission for expert evidence to be placed before the court must be made as soon as possible (rule 25.6).  In reality it should be made as soon as it becomes obvious that the evidence is necessary.  It will usually be dealt with at the first directions appointment.

When a court orders expert evidence it will usually set out the procedure for the expert to be chosen.  Some courts will order that the parties shall agree the identity of the expert within e.g. 14 days.  On other occasions the court may order that one side e.g. the Husband, shall supply details of 3 proposed experts to the Wife who shall then choose.

There is usually then a time by which the parties have to agree on a joint letter of instruction to the expert. 

Provision is then made in the court order for the expert to prepare their written report by a certain date, for example within 4 weeks or 8 weeks.

Once the expert has provided their report the parties can ask written questions within 10 days of the date on which the report was provided (rule 25.10).

Rule 25.12 provides that unless the court directs otherwise the parties are jointly and severally liable for the payment of the expert’s fees and expenses.  In reality this means that both will have to pay for half of the cost.