Using a single joint expert in a financial remedy case

When you need the court's permission

Part 25 of the Family Procedure Rules covers experts. In financial cases, nobody can put expert evidence before the court without the court's permission.

The court gives permission only if it thinks the evidence is necessary to help it resolve the case. Practice Direction 25D says you do not need permission to approach an expert at first. You do need it to use their evidence in court.

When deciding, the court considers the issues, the questions for the expert, the effect on the timetable and the cost.

When to ask

You must ask for permission as soon as possible. In financial remedy cases the latest point is usually the first appointment, unless the court allows more time.

Practice Direction 9A encourages parties to tell the court before the first appointment about any expert they propose, if possible.

What a single joint expert is

Where both of you want expert evidence on the same issue, the court can direct one expert for both of you. This is a single joint expert.

Practice Direction 25D says parties should try to instruct a single joint expert first. Examples include a valuer for a property and a pension expert.

An expert's duty is to help the court. That duty overrides any duty to the people who instruct or pay them. Their opinion must be independent of the parties.

Agreeing who the expert is

Practice Direction 25D sets out how the choice is usually made.

1. The person proposing an expert gives the other a list of one or more suitable experts.
2. The other person has 10 business days to object and suggest alternatives.
3. Each of you says whether you have already consulted any proposed expert.
4. Preliminary enquiries are made of the expert, including their expertise, availability, timetable and likely cost.
5. If you cannot agree, the court can choose from a list you prepare, or decide another way.

What the permission application says

Under Part 25, the application should name the field of expertise and, where practicable, the expert. It should say which issues the evidence relates to and whether a single joint expert could do it.

Practice Direction 25D adds more. This includes the expert's qualifications, availability and timetable, likely costs and how fees will be split. It also asks who will be responsible for the instructions. A draft order should go with it.

The letter of instruction

Instructions to a single joint expert go in one letter that both of you agree, unless the court directs otherwise.

Practice Direction 25D says the person responsible prepares, files and serves the letter within 5 business days after the permission hearing. It sets out the context, the questions, the documents to read and how the expert will be paid.

If you cannot agree the letter, either of you can ask the court in writing, copied to the other. The court will usually settle the letter without a hearing.

Who pays

Before asking for permission, Practice Direction 25D says you should agree how the fees will be split, at least at first. You should also agree when they will be paid.

The court can give directions about fees. It can also limit the amount paid to the expert before they are instructed.

Unless the court directs otherwise, both of you are jointly and severally liable for the fees. This means the expert can ask either of you for the full amount.

Asking the expert questions

Under rule 25.10 you can put written questions to the expert about their report. The questions must only be to clarify the report, and must be proportionate.

You can ask once only, within 10 days of the report being served, unless the court directs otherwise. Send a copy to the other party at the same time.

The answers form part of the report. In the express financial remedy pilot, the time limit is 7 days instead of 10.

At the hearing

Expert evidence is normally given in a written report. The court will only direct an expert to attend a hearing where this is necessary in the interests of justice.

Where more than one expert on an issue has been allowed, the Financial Remedies Court guide expects a discussion between them. This should take place no later than 28 days before the final hearing.

Key dates

1. No later than the first appointmentAsk the court for permission to use expert evidence, unless it allows more time.Source: official page ↗ (external source, opens in a new tab)
2. Within 10 business days of receiving a proposed listThe other person can object to a proposed expert and suggest others.Source: official page ↗ (external source, opens in a new tab)
3. Within 5 business days after the permission hearingThe person responsible files and serves the letter of instruction.Source: official page ↗ (external source, opens in a new tab)
4. Within 10 days of the report being servedPut any written questions to clarify the report. In the express pilot this is 7 days.Source: official page ↗ (external source, opens in a new tab)
5. No later than 28 days before the final hearingWhere there is more than one expert on an issue, they discuss it.Source: official page ↗ (external source, opens in a new tab)