Calling in the experts – impartiality and hot-tubbing

Knowing when, who and how to instruct experts can be an essential part of negotiating a favourable settlement or, where negotiation is not possible, preparing for litigation. 

There are a multitude of reasons why family lawyers instruct experts to provide opinions and having a bank of trusted reputable experts is essential in ensuring that clients are in a position to make well-informed decisions. Experts can be instrumental in a variety of family cases – from business or property valuations to psychiatric assessments; knowing the right questions to ask the right expert is key to obtaining the relevant information. 

When experts are instructed in the context of English court proceedings, there are important formalities to adhere to and crucially the expert must retain impartiality – they have a duty to the court, not the parties. Lord Hamblen, a Supreme Court Justice told the Expert Witness Institute that 'There is nothing more fatal to the acceptability of an expert’s evidence than the questions of independence and impartiality.' Lord Justice Thorpe described it as though one party is on the pavement on one side of the road, and the other on the other side, the expert must walk down the middle. In a recent family law case, the judge criticised the expert as walking 'on the pavement hand-in-hand with the husband' and found that his 'partiality [dealt] a fatal blow to his use of [the] figures.'

In addition to court-appointed experts, we may also instruct experts to advise on areas connected to but distinct from family law, for example tax implications, potential criminal proceedings, defamation, employment law or wealth planning. We are in the fortunate position at Withers of being able to draw on the knowledge, expertise and experience of our colleagues for advice and insight on a wide range of specialist practice areas without stepping outside of the firm.

When making a decision as to whether to call in the experts, important questions to answer are:

1. What information do we need from the expert?
2. What information do they need from us?
3. What are their qualifications and can they comply with the court timetable?
4. Is expert evidence necessary for the court to determine the relevant issues?
5. Should the expert be instructed jointly by the parties (often the court's preference). If there has already been a jointly instructed expert in the case is it in the client's best interest to use a shadow expert, or seek permission from the court to adduce alternative evidence, to test or challenge the opinion of the joint one?

In a recent contested financial divorce case in which we acted for the successful party (CG v SG [2023] EWHC 942), the decision late on in the proceedings to instruct an independent expert to provide a fresh valuation of our client's business interests, following unfavourable reports from a joint expert and also a sole expert relied on by the other spouse (both of which, we successfully contended, were based on flawed methodology), proved to be invaluable in securing a beneficial outcome for our client. 

In order to use an additional expert in these circumstances, it is necessary to make a permission application to the court (a Daniels v Walker application, so named after the first case of its kind). In such cases the opposing experts are required to liaise with each other before the substantive court hearing to agree points in issue and any points of common ground. In some cases, the experts may give evidence consecutively (the traditional approach), whereas in others, some Judges have developed a preference for experts to take the stand together to give evidence (known colloquially as 'hot-tubbing') so that they can both answer the relevant questions at the same time. 

In cases involving arrangements for children, there has recently been a review of how to choose the right expert. Following a much-publicised decision regarding the suitability of a court- appointed expert (Re C ('Parental Alienation'; Instruction of Expert) [2023] EWHC 345 (Fam), the Family Justice Council and British Psychological Society came together to produce guidance regarding the use of psychologists as expert witnesses. Understanding the expert's qualifications and thinking carefully about the type of expert required for the particular case is critical. 

Experts can help to unlock seemingly intractable situations, but it must be the right expert for the right case, which is why knowing who to approach is such an important part of achieving the desired the objective.