Many of the divorces that we deal with involve assets of some complexity. The financial pot to be divided might include complex pension funds and other investments for example, or substantial property portfolios in the UK and overseas.

Sometimes we are required to unravel intricate trusts and other legal vehicles to ascertain the precise value of assets available for division. Against this backdrop then, it’s not surprising that evidence from financial and other experts is sometimes required. It may be the only way to arrive at a realistic and fair financial settlement. For the reasons we explore below, courts prefer what’s known as a ‘Single Joint Expert’ (SJE) – appointed by both parties – to provide a report on the value of specific assets. However, where one spouse is dissatisfied with the approach of the SJE there is a procedural mechanism for that spouse to appoint another expert and present further evidence as to the value of the asset in question. As we’ll see however (from the 2023 High Court case of GA v EL) there are limitations when appointing a separate expert.

What Are The Rules About Using Experts To Value Assets In Financial Proceedings?

Expert evidence is not permitted in financial proceedings without the explicit permission of the court. This type of evidence is unique – experts are allowed to give evidence of opinion in contrast to other witnesses – so the use of such evidence is tightly regulated. The rules are set out in Part 25 of the Family Proceedings Rules and include the following:

  • The expert’s overriding duty is to the court, not to the parties involved in proceedings. This duty is more important than any obligation to the person or persons who instructed the expert or who paid them for the service
  • Courts will only permit the evidence of an expert where it thinks such evidence is ‘necessary’ to assist the court in reaching a decision on financial matters
  • An application to produce expert evidence must be brought as soon as possible. The rules specify the stages in proceedings by which time applications are expected to be made
  • Where the court gives a direction for an SJE to be used, the instructions are to be contained in a jointly agreed letter unless the court directs otherwise
  • If parties can’t agree the instructions for the SJE the court can set out the parameters within which the SJE should work

Daniels v Walker (2010) – What If I Am Unhappy With the SJE Report?

The SJE is required to be impartial, and each party is able to ask the SJE particular questions and ask the expert to concentrate on specific issues. Nevertheless there are occasions when one side will wish to present further expert evidence. The case that a party will have to rely on in this scenario is Daniels v Walker from 2000. There, one spouse was permitted to obtain a separate expert report before deciding whether to challenge the evidence of the SJE.

It’s important to note that these so-called Daniels v Walker applications are limited in scope, and do not give a party carte blanche to depart from the findings of the SJE. Courts generally are reluctant to interfere with values like family homes once figures are accepted by the parties and produced to the court. And the judge in Daniels v Walker made clear that the decision as to whether to allow an additional expert report or not was entirely at the discretion of the court. He added that reasons for obtaining a separate report should not be ‘fanciful’. It’s also worth noting that an expert instructed by a single spouse still has the same overriding duty to the court mentioned above and must remain impartial.

Will My Request For A Separate Expert Valuation Succeed?

The limitations on Daniels v Walker requests for separate valuations were highlighted in the 2023 case of GA v EL discussed below.

In this case the parties separated in 2019. During financial proceedings the husband and wife were able to agree the division of non-business assets but couldn’t agree on the value of the family business. This was a software business founded by the husband and in which the wife held 30% of the shares. It was sold in 2022, three years after separation) with the husband and wife receiving combined sale proceeds of £35m.

An SJE was duly appointed to value the business at the time of separation and to compare this to the actual sale price. This exercise was intended to assess whether the husband’s post separation endeavours had added value to the business for which he should be given credit when the proceeds of sale were being divided as part of the financial settlement.

The SJE attached certain values to the business with which the wife disagreed. She then asked her own expert to value the business. Ultimately there was a difference of around £2m between her expert and the SJE. She then made a Daniels v Walker application to allow her to introduce the evidence of her separate expert. Her application was refused for a number of reasons, including:

  • The application was brought too close to the final hearing. The judge decided that to allow the application would be unfair to the husband because he would not have enough time to develop a proper challenge to the wife’s new evidence
  • There was nothing to stop the wife crossing examining the SJE on the issues her own expert had raised
  • The difference in the two valuations was relatively insignificant in the context of the £35m proceeds from the sale of the business

Comment

Without knowing the facts of your case it’s difficult to say whether a Daniels v Walker application is appropriate. Requesting an additional expert however, which will take up more court time and use up more in legal costs is not the kind of application you should make without careful consideration.

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