J v J

[2014] EWHC 3654 (Fam)

Lawyers and Experts get 32% of the assets

The Facts

This was a divorce case before Mostyn J. When giving judgment he noted that the costs were highly disproportionate, concluding his judgment with the note that of the assets that existed at separation, the wife would receive roughly 39%, the lawyers and experts 32% and the husband 29%.

In particular the judge noted that:

“one reason why so much forensic acrimony was generated, with the consequential burgeoning of costs, was that the Deputy District Judge at the first appointment on 9 November 2012 [did not limit the parties to single joint experts, but instead] permitted each party to have their own expert to value the husband’s business interests … In this case the [rival] forensic accountants have filed a total of no fewer than six expert reports and have prepared a joint statement setting out their extensive disagreements. They have charged a total of £154,000 in fees. The husband has been permitted during the course of the case to ditch his expert and to instruct a new one.”

Comment

The judge also made some very caustic comments about the lawyers fees. There is not much to be said here beyond the fact that it is obviously incumbent upon parties and their legal advisers to try to be realistic about fees, but such is easier said than done. The refusal of the parties to instruct single joint experts to assist them on business and property valuation matters (where, in the writer’s experience at least, they are most often sensibly used to good effect), suggests a piece of litigation conducted in the finest, old style “no quarter asked or given” traditions.

It is easy to criticise such an approach, but the fear with single joint experts on crucial issues is, of course, that in agreeing to their instruction a party must give up a very substantial degree of control over the conduct of the case. That can fill any litigant with discomfort, and the temptation to “play it safe” can (and here evidently was) overwhelming.

It is important to remember that if something goes truly awry with a joint expert instruction, there is scope in the rules to ask the court for permission to call separate experts later – although of course that might be said to be an instruction that you can walk on the ice if you want to see how thick it is.

TEDR Volume & Issue

TEDR Volume: 
19
TEDR Issue: 
3