Family lawyers and clients need to be aware of changes in the rules concerning the instruction of experts in financial remedy proceedings.
Expert accountants and surveyors, together with experts in other fields, are often required to assist the parties to a divorce to determine issues such as the value of their home, business premises or trading business for the purposes of those proceedings and therefore this change is important to people going through a divorce and involved in a dispute concerning financial issues with their spouse. The court's persmission is required to instruct such an expert as part of its role to manage proceedings and keep costs proportionate to the issues at stake between the parties.
The new rules, which came in force on 31 January 2013, include changes to the test the courts apply to determine whether permission should be granted for the instruction of an expert. The test which the court is to apply to the question of whether permission should be given to instruct an expert has changed from one of whether the expert's opinion is 'reasonably required' to resolve the proceedings to whether the expert's opinion is 'neccessary' to assist the court to resolve the proceedings.
The courts will also continue have regard to the overriding objective when deciding whether to give permission which includes the court dealing with all cases justly having regard to any welfare issues involved and whether it is proportionate for expert evidence to be directed in each case.
Although the expectation is that this change to the rules should have little practical effect on the way cases are decided as the rules supposedly reflect the current practice in the family courts this remains to be seen. As Gareth Curtis Associate in the DWF family team states: "This is a clear change of language in the rules concerning the test the court will apply to determining the question about whether Expert evidence is needed and I expect there to be a far greater level of debate between solicitors and at courts going forward in cases involving the potential instruction of an expert, particularly involving the instruction of an expert accountant which can be incredibly costly to the parties and not always of the greatest utility."
For consideration of the rules in their entirety please see the Law Society's information and templates.
Should you have any further questions in relation to the impact and importance of the new rules or seek family law advice please do not hesitate to contact the DWF family team.