This article discusses the issues relating to appointing an single joint expert for relationship property valuation matters in NZ. It is an approach worth considering for most proceedings, but especially where the sums involved are lower and the valuation issues relatively straightforward.

1. I
n New Zealand relationship property
proceedings, forensic accountants and
other expert witnesses are almost always
appointed on behalf of one of the parties (a
‘party appointed expert’, or PAE). In com-
parison, where expert evidence is required
in matrimonial cases in the United Kingdom
and Australia, the parties normally jointly
appoint a single expert (a ‘single joint expert’,
or SJE).
Having been engaged as a SJE on valuation
and other financial matters for family law
proceedings in both NZ and the UK, I have
seen the SJE approach deliver significant time
and cost savings. While there are certainly
risks to this approach (you may ultimately end
up with three experts), there is considerable
scope for its increased use in NZ – particularly
for lower value, less complex matters.
How is the SJE process
governed in the UK?
In the UK, the appointment of experts in
family law proceedings is governed by law
(specifically, Part 25 of the Family Procedure
Rules 2010 (FPR) and the associated Practice
Direction 25D1
). These documents set out
a broad procedural framework covering all
core matters, including appointment, fees,
information disclosure, reporting require-
ments and timetable.
The general position of the FPR is that
SJEs should be appointed rather than PAEs,
and the UK Courts have actively supported
this approach. Even if the parties wish to
appoint their own experts, the court can
over-ride their wishes and order them to
instruct a SJE instead.
Where a SJE is appointed and produces
a report, either party can still seek leave to
obtain a second report from a PAE. However,
for that PAE report to be accepted as evidence
by the court the party would almost certainly
need to show that:
·· theSJEhadbeenunabletoresolvetheissue
·· there were substantial sums and complex
issues involved
·· the request was legitimate and
proportionate2
.
The overriding duty of the expert is of
course the same under either approach.
Their primary duty is to the court, and it
overrides any obligation to the person who
instructs them or pays their fees.
At present there is no established SJE
regime in New Zealand. At this stage a sep-
arating couple wishing to appoint an SJE
would need to agree their own procedure
to do so, possibly modelled on the UK or
Australian regimes. The use of an expert
familiar with SJE processes is also likely to
be of benefit.
So how does the SJE process
work?
The SJE approach can deliver significant
time and cost savings, but it also raises some
issues that need to be carefully managed to
ensure an effective process.
Time and cost savings
Usually only one expert report is required
under the SJE approach, followed by written
answers to any subsequent questions from
the parties. This makes the process much
quicker and less costly than using PAEs,
which usually requires a report from each
expert and often reply or supplemental
briefs, followed by expert meetings and a
joint statement. In some cases the costs of
an SJE can actually be less than one of the
PAEs appointed under that approach.
The reduced volume of evidence also cuts
down the length of time the expert needs to
be involved in the process. Even for relatively
complex assignments the SJE approach
usually takes less than three months from
the date of instruction to providing written
responses to any questions, assuming timely
disclosureofinformation.Inaddition,because
the expert is appointed by both parties, it is
usually quicker and easier to access all the
information required to complete the work.
Issues to be aware of
The time and cost benefits of a SJE approach
are attractive, but there are some issues to
consider. Whilst some of these issues are
definite disadvantages, others arise due
a lack of familiarity of advisors used to a
PAE approach.
The SJE approach tends to be less suited
to complex or novel situations, where the
courts might prefer to see a range of views
discussed and debated by more than one
expert. However, only a small number of
cases fall into this category.
Very high value assignments also tend to
be less suited as, due to the sums involved,
shadowexpertsareofteninstructedtoprovide
a “second opinion”. Any possible cost savings
disappear very quickly once additional experts
are engaged.
Tension can arise during the SJE process,
as legal advisors for both parties have to
work together to instruct the expert, whilst
continuing to protect their own clients’
interests. This can lead to:
·· lengthy negotiations over who to appoint,
their instructions and their fees
·· disagreement over the appropriate factual
information to be given to the expert
·· disagreement about the questions to be
asked in response to the expert’s report
(particularly if these are seen as extending
the initial instructions)
Communication channels are also more
open, formal and structured than under a
PAE approach. The expert must send any
communications to all parties, and any dis-
cussions with the expert must be documented
and shared with everyone. The overriding
considerations are fairness and transparency
and the process can quickly derail if there is
any suspicion these principles are not being
upheld (for example, if the expert were to
interview one spouse, but not the other).
Finally, there is an overriding risk the
SJE process will fail, simply because one or
both of the parties does not agree with the
outcome and refuses to settle on that basis.
Sadly, this is likely to result in an extended
litigation process and the involvement of
three experts, rather than one or two.
Summary
Appointing a SJE, rather a separate expert
for each party, can deliver clear time and
cost savings.
The SJE process is particularly effective
in straightforward, lower value proceedings.
For high value or complex proceedings the
SJE process can still work well, but the
benefit of potential savings can sometimes
be outweighed by the issues, including the
risk that the process might fail because one
or both of the parties does not agree with
the expert’s opinion.
In either case, guidance from an expert
who is experienced in SJE processes can
help you to assess the issues and decide on
the right approach.
Jay Shaw is an investigating accountant and
the head of litigation support at Forensic Advi-
sory Services, a specialist firm of investigating
accountants with offices in NZ, Australia, the
UK and Singapore. He has nearly 15 years’
experienceinassistingwiththefinancialaspects
of relationship property settlements, including
businessvaluationsandfinancialinvestigations.
You can contact Jay at jshaw@fas-nz.com.
1. Both are available online at https://www.justice.gov.uk/courts/
procedure-rules
2. As addressed by the Court of Appeal in Daniels v Walker
[2000] 1 WLR 1382
JAY SHAW
The single joint expert process – a
specialist’s view
NZLS CLE LTD SEMINAR — VALUATION OF RELATIONSHIP PROPERTY
TUESDAY 25 AUGUST – 4.00PM – 6PM (AUCKLAND VENUE TBC)
PRESENTERS: KIRSTY SWADLING AND JAY SHAW
T H E FA M I LY A D V O C AT E – V O L U M E 1 6 I S S U E 4 T H E FA M I LY A D V O C AT E – V O L U M E 1 6 I S S U E 422 23