10 Tips For Family Lawyers Working With Third Party Experts

On 10th July 2023, FLiP Director James Pirrie spoke at the annual tax on divorce and separation conference run by The Legal Training Consultancy. In this blog, James provides his top ten tips for family lawyers working with third party experts  to build stronger working practices.

The Family Procedure Rules Part 25 is the meeting point for lawyers and accountants.  Managing these relationships professionally and well lies at the heart of being able to enrich the financial-separation conversation with guidance as regards for example tax, corporate or other technical matters.

FLiP has always sought to work well and closely with other professionals.  So often the expertise third party experts bring can transform positively the solutions available to those needing family law solutions – whether within court or – to be preferred, where available – away from court.

Here are James’ top tips:

1. The awareness of the 2021 decision Zuber Bux v GMC [2021] EWHC 762 (Admin), which seems to have passed somewhat under the radar.  It is a decision that seems to require all contacts between the appointing solicitor and the intended expert to be disclosed to the court for assessment, (against a backdrop where within the industry there are myriad such contacts).  Will this decision start to see such relationships being conducted much more at arms length and with what impacts as regards building effective working relationships?
2. Building awareness of the brutality of the timetabling: there is just too much to fit into the short time available between the preparation of the form E and the first appointment.  The court expects a range of material to be in order and where this is not done, the application for an expert’s input may be refused.  We probably need to start on this task much earlier than the exchange of forms E to get it done.
3. Build effective precedent packs and, where possible, to standardise the approaches to be taken to permit greater delegation of the preparatory steps.  James suggests a different way through the steps and stages to ensure readiness in good time.
4. A reminder that schedule 1 cases (financial applications usually between never married partners relating to their children) may feel like they are financial cases but the rules-regime that applies to them is that of a children case: permission is needed to instruct an expert and the individual questions to the expert must each be approved by the court. It makes all the clearer the value in having scoping meetings between the parties and the expert.
5. Proper information should be given to potential experts so that they can carry out conflict checks and provide a realistic costs estimate but also, to prepare for the task ahead, he suggests that the GDP Regulations do not stand in the way of doing what is needed.
6. The need to provide proper protection for our experts against the encouragement in the case of Loggie [2022] EWFC 2 that a cap is imposed on the fees of the expert.  That sounds fair but it may not work well in practice, for example where the briefing is insufficient (see previous point) or where the scale of the task hasn’t yet become clear.  At the very least it seems questionable for a cap to be imposed where the expert has no opportunity to make clear their perspectives.
7. The recommendation to have a separate order for each expert and make it separate from the first appointment order.  It permits:
   • Comprehensive coverage of what is needed
   • Faster & cheaper management of the preparatory steps; and
   • better targeting of the important information on who needs it.

   Nicholas Allen QC is a Deputy High Court Judge and an increasingly influential voice in the practice and development of family law.  He has shared his views as to the limits to the part 25.10 questions, making clear that the guidance in the rules that they must be proportionate and for clarification only should be taken seriously.

8. Recognise this development which underlines the importance of asking the right questions in the first place. The increasingly managed process is likely to throw up more challenges and difficulties that need further intervention.
9. Remember that the expert is able to seek help from the court under part 25.17.  Thought should be given to how this process could be set up at the first appointment to be managed in a cost and time-efficient way.
10. The lawyers should maintain that careful balance: on the one hand they must respect the independence of the expert, on the other they also have a duty to the court to ensure that the expert performs their role.

The best possible working relationships between lawyers and experts whose help is needed promotes the chance of the right outcome in the best way at the lowest cost.  We need to know the rules and manage the process efficiently to ensure that the court helps us to do just that.