The recent concise decision of Mr Richard Todd KC in H v M [2025] EWHC 2647 may have been overlooked by those enjoying a summer break. Principles are espoused within the judgment that deal with common issues in financial remedy proceedings concerning the scope of instruction to a single joint expert, and subsequent questions to the expert.
Background
The case concerned an application by the husband in relation to a case management decision prior to FDR, where the husband wished for the single joint expert to address new matters such as up to date accounts in a draft expert’s report. The wife by means of reply, sought merely for the “draft” watermark on the report to be removed, and the report to otherwise stand as drafted.
Analysis
The Court made a number of pertinent observations that will be useful where a dispute arises over the terms of an SJE’s instruction or the ambit of further questions:
(a) The objective of an SJE report is to enable a full effective FDR. That requires the “best evidence” to be available, and the best evidence will often be the most recent evidence [§6].
(b) If there is a dispute over the terms of a joint letter of instruction to an expert, then the “usual approach” will be to allow both parties to put their basis for instruction in the letter [§7, §8, Daniels v Walker [2001] WLR 1382].
(c ) In an “extreme” dispute, parties may each send two separate letters of instruction [§7].
(d) Where one party has raised issues through a letter of instruction or subsequent questions that have been later found to be inter alia irrelevant, the remedy will be an order for costs at the final hearing to cover (i) additional costs of the expert, (ii) the other side’s costs for dealing with the issue, and (iii) being unable to deduct their own costs in raising the issue from the matrimonial assets [§7].
(e) Aside from the costs risk, a party should be entitled, within reason, to put the case they wish to run to an SJE [§9].
In H v M, the husband’s application was successful, notwithstanding the additional questions he sought to raise amounted to some 59 pages. It should be noted, this came with a costs warning by the Judge, who had also not seen the questions as they were marked without prejudice.
Conclusion Where there is a dispute over the terms of instruction or subsequent questions to an expert, those seeking to raise the questions or issues are likely to be given a relatively wide latitude. The appropriate approach will often be to put that party on notice in relation to costs, relying on H v M. Where the issues raised have been found at a final hearing to be irrelevant, too far reaching, or otherwise failing to assist the Court, there are likely to be costs consequences for the same.
