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Buehrlen v Buehrlen [2017] EWHC 3643 (Fam)

Moor J rejects the submission that the ‘necessity’ requirement for expert evidence should be applied differently in children and money cases, and makes general comment on the usefulness of employment experts.

Moor J rejected an appeal against a case management decision of HHJ Scarratt, refusing permission for H to instruct an expert in respect of W's earning capacity.

HHJ Scarratt had determined that such an expert report would be helpful but not necessary in the context of the case [12], and therefore failed to meet the necessity requirement of FPR 2010 r25.4(3). On appeal, H (acting in person) submitted that the Court of Appeal authorities of Re TG [2013] EWCA (Civ) 5; [2013] 1 FLR 1250 and Re HL [2013] EWCA (Civ) 655 in relation to the interpretation of necessity should be distinguished on the basis that they were children's cases and involved experts of 'dubious validity' [9].

Moor J confirmed that the cases were not confined to matters where there was a question as to the validity of the expert, and held that the authorities were squarely addressed at the definition of 'necessity' [9]. Notwithstanding that the 'necessity' requirement comes from different sources in children's and finance cases (the Children and Families Act 2014 and the FPR 2010 respectively), the word and its definition applies to both forms of proceedings [9][11].

Moor J references (at [9]) Munby P's ruling in the Court of Appeal in Re HL that:

"There is evidence that is "indispensable on the one hand and (evidence that is) useful, reasonable and desirable on the other."  The President was clear that "indispensable" would fall into the necessary category.  "Useful, reasonable and desirable" would not" [italics in original]

His Lordship followed the formulation in Re HL that 'necessary' in this context lies somewhere between those two options "Having the connotation, the imperative, what is demanded rather than what is merely optional or reasonable or desirable" [italics in original] [9][10].

Moor J held that HHJ Scarratt was 'in fact absolutely right' [25] in determining that the expert employment evidence was not necessary in the instant case, and noted that it was entirely possible to present evidence at a final hearing as to what W could earn from publicly available documents and job adverts, and to cross examine her on that basis. Indeed, Moor J made a general comment that, although there are cases where such evidence would be of use, 'in the vast majority of cases' it would not be helpful or useful to have such evidence [24] and that judges were well able to asses earning capacity via cross examination and without additional expert input.

Summary by Samuel Littlejohns,  barrister, 1 Hare Court


No. 2017/0164
Neutral Citation Number: [2017] EWHC 3643 (Fam)


Royal Courts of Justice
Friday, 24th November 2017


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B E T W E E N :

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Transcribed by Opus 2 International Ltd.
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**This transcript has been
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THE APPLICANT appeared in Person.
THE RESPONDENT did not attend and was not represented although she submitted a written argument
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1. This is an appeal in relation to a case management decision made by His Honour Judge Scarratt on 26th September 2017, in which he refused or dismissed the application.  I am going to call the parties "husband" and "wife."  There has been a decree absolute, but, if I am not careful, I will get very confused if I refer to them as "petitioner", "applicant", "appellant" and "respondent", most of which apply, in various contexts, to both parties.  I do not mean any discourtesy by calling them "husband" and "wife".  Judge Scarratt dismissed/refused the husband's application to instruct an employment expert and the husband appeals from that refusal.

2. By way of brief history, the parties married on 22 February 1997. A decree absolute was pronounced on 25th May 2017.  The matter came before District Judge Mulkis for a First Directions Appointment on 10th October 2016.  Expert evidence is supposed to be dealt with at the First Appointment.  Indeed, in certain respects it was because there was an order for property valuation and a very sensible order for evidence as to mortgage rates and capacity as well as the production of alternative property particulars.  That was not for expert evidence in the sense that an expert was to be called.  It was for the parties to put in documents, showing mortgage rates and capacity and alternative property particulars.

3. There is a recital that says that both parties reserve their right to issue a Part 25 application in relation to medical evidence, valuation evidence of the husband's business, and valuation evidence of the husband's trust properties or interests therein.  There was nothing therefore about expert evidence as to earning capacity.

4. The matter then came before Deputy District Judge Butler on 16th February 2017 for a Financial Dispute Resolution Hearing ("FDR").  As I have explained to Mr Buehrlen in this application today, the FDR is a privileged appointment and the law says that nothing that happened during that appointment can be referred to again other than what was said in relation to any directions given at the end of the hearing.  I have therefore had to remove/not read a paragraph from his skeleton argument that deals with what happened at the FDR.

5. On 5th July 2017, there was a further Directions Hearing before District Judge Jenkins.  District Judge Jenkins directed that any application for evidence from an employment consultant was to be made by 19th July 2017.  Further directions were made including for the provision of statements with up to date CVs.  On 19th July 2017, the husband made his application for the instruction of an employment expert.  The application says that the wife was in full-time employment from 2011 to 2015.  I refer to that because 2015 was not very long ago and, clearly, the earnings that she was generating at that point in time will be particularly relevant to determining her earning capacity at a final hearing.

6. It is said that the wife alleges that she cannot find employment or that suitable employment is rare.  Well, those are both absolutely standard matters for cross examination and would normally be dealt with by the provision of advertisements for suitable employment, together with details of the salaries the jobs attract.  The husband tells me that the wife is a model maker and jewellery designer. 

7. It appears that his application for expert evidence as to earning capacity was initially resolved.  In one sense, this is the height of his case in support of this appeal.  The parties agreed the instruction of a single joint expert employment consultant to report.  I do not know why the wife agreed.  It may be that the cost consequences of opposing the application may have played a significant part in her decision.  In any event, the matter came before District Judge Hudd on 25th August 2017 as a paper exercise.  She is a very experienced financial remedy District Judge.  She was clearly not happy with the agreement.  I am not surprised. I accept that she thought that the matter had been listed for a final hearing on 25th October 2017.  It may be that the potential for delay played a part in her decision but I cannot be sure.  In any event, she refused to approve the Consent Order and she said that the court was not currently satisfied that an employment consultant was necessary to assist the court to resolve the proceedings.  She listed the application for a hearing on 26th September 2017.

8. The matter came on that date before His Honour Judge Scarratt.  He heard a contested application because, by then, the wife's position was that she opposed the instruction of a single joint expert.  He dismissed the husband's application for such an expert.  He gave a detailed judgment.  He did say in his judgment that the issue was, perhaps, more finely balanced than some, but he came down in the end clearly in favour of dismissing the application.  He quoted from the leading authorities which are binding both on him and me, namely Re TG [2013] EWCA (Civ) 5; [2013] 1 FLR 1250 and Re HL [2013] EWCA (Civ) 655, both decided in the Court of Appeal and in which the President of the Family Division, Sir James Munby gives the leading judgments.  The cases deal with the question of "necessity" in the context of obtaining expert evidence.  In the context that I am dealing with it, FPR 2010 Rule 25.4(3) permits the use of such evidence only where "it is necessary to assist the court to resolve the proceedings."

9. Mr Buehrlen, in his submissions to me, tries to make a distinction between TG and HL on the basis that they were children's cases, in which the proposed expert evidence was found to be of dubious validity but I cannot accept that submission because the relevance of the decisions is not as to the quality of the expert evidence but as to the definition of "necessity".  This word applies in relation to both children's cases and financial remedy cases, albeit it now via different provisions, namely the FPR in financial remedy cases and the Children and Families Act 2014 for children's cases.  The President says that evidence falls into various categories.  There is evidence that is "indispensable on the one hand and (evidence that is) useful, reasonable and desirable on the other."  The President was clear that "indispensable" would fall into the necessary category.  "Useful, reasonable and desirable" would not. 

10. The President goes on to ask himself where the line falls.  He says "necessary lies somewhere between those two.  Having the connotation, the imperative, what is demanded rather than what is merely optional or reasonable or desirable."  That is the test that District Judge Hudd, His Honour Judge Scarratt and I all have to apply although, as I will explain in due course, it is a higher test for me because I can only allow the appeal if I determine that Judge Scarratt was wrong.

11. Mr Buehrlen submits to me that the whole justification behind this test of necessity is to eliminate unnecessary experts in children's cases.  Again, I cannot accept that.  The rule changed the test for obtaining expert evidence for every type of family law litigation.  The test of necessity is not confined to children's cases, although it is right that the impetus for the Family Justice Review was the huge delays that were then common in public law children's cases. 

12. The learned judge said that he considered that the evidence that the husband wished to put before the court would be helpful but not necessary.  He made the extremely important point that judges assess earning capacity each and every day. 

13. The husband filed a notice of appeal in which he appealed solely from the refusal to appoint the expert.  His grounds of appeal say that the judge was wrong to interpret "necessary" as an absolute test.  He argues that the judge did not refer to rule 25.5 (2) which sets out the criteria to be considered and which, he submits, is fact specific.  He says that the judge set himself far too high a threshold and failed to conduct a proper analysis under the rule.  He also says that I have to make allowances for the fact that he is a litigant in person.  He says that there was no application or intention to call the expert at the final hearing.  I take the view that this submission arises out of a complete misunderstanding by him.  If this evidence goes in, there is no question other than that the expert will have to come to court to give evidence and be cross examined unless the evidence is agreed.  Indeed, it now appears that the husband has prepared an expert report on his sole instruction.  At the very least, there must be the possibility that, if I was to allow this appeal, there would then immediately be an application for a second expert on behalf of the wife.  This is exactly the sort of situation that courts attempt to avoid if at all possible.

14. On 24th October 2017, Mr Justice Baker granted the husband permission to appeal and listed the appeal for today, with a time estimate of two hours.  He made various directions in relation to the appeal.  It is fair to say that this means that the learned judge must have considered that the appeal would have a real prospect of success.  That, however, does not mean that I am bound to allow the appeal.  No reasons were given in the order for why he granted permission to appeal.   I have not spoken to Mr Justice Baker but it may be that he gave permission because the wife had originally agreed to the instruction of the expert.  Mr Buehrlen has appeared in person before me today.  He indicates to me, quite fairly, that he hopes to settle this case.  Indeed, I share that hope.  He was suggesting that it would be easier to settle the case if he could rely on the expert but I do not accept that is necessarily correct.  If he is unable to settle the matter, he recognises that he may have to instruct a direct access barrister to represent him at the final hearing.

15. The wife does not appear today.  She has sent a letter to the court saying she cannot afford representation and she has temporarily disinstructed her solicitors to save money.  She indicated that she opposes the appeal and sets out her reasons for doing so.  

16. I have to conduct this appeal in accordance with the rules.  Rule 30.12 says that every appeal will be limited to a review of the decision of the lower court, unless (b): "the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing."  I am quite clear that it would not be.  This is a review of the decision of the lower court. 

17. The rules then say that "unless it holds otherwise, the appeal court will not receive oral evidence or evidence which was not before the lower court."  I did decide this morning to look at the report that Mr Buehrlen had commissioned.  I did so using the Latin term, de bene esse, but, to use more conventional language, I did so on a provisional basis, simply to see what the report contained.  I will deal with that later in my judgment.  The rule goes on to say that "The appeal court will allow an appeal where the decision of the lower court was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

18. There was no serious procedural or other irregularity so it is merely a question of whether the decision was wrong.  I am satisfied that that is a stiff test.  This was a case management decision.  It is quite clear from the authorities that judges making case management decisions are given a wide range in which they can exercise their discretion.  I cannot allow an appeal just because I might have made a different decision.  I can only do so if I decide that the decision that the judge came to was outside the band of reasonable decisions that a judge could have come to in this case.  So that is the test that has to be established.

19. I now turn to consider the arguments for allowing this evidence.  It helps, perhaps, that this was my area of specialisation in practice.  Whilst a full-time judge for the last six and a bit years, I have dealt mainly with what might be described as the "big money" financial remedy cases rather than those that do not have quite such significant assets.  But in practice, I appeared, on numerous occasions in cases where the assets were lower and I have heard a significant number of such cases even since my full-time appointment.  I cannot remember the last time that I heard a case where there was an employment expert called.  It was certainly a very long time ago.  I recognise that Mr Justice Mostyn has apparently heard from this particular expert in one recent case and has given his approval to the expert's evidence.  I understand that, but by its very nature, the fact that case was before Mr Justice Mostyn suggests to me that it was a complicated piece of litigation rather than one of the legion of financial remedy cases that are undertaken across the country on a day to day basis.  I am not suggesting for a moment that this case or, indeed, any case is unimportant litigation, but this case is standard fare for a District Judge or Circuit Judge sitting in the Financial Remedies Unit.

20. On any application for financial remedies, the judge has to apply s.25 of the Matrimonial Causes Act and has to make an assessment of the earning capacity of both parties, including any increase in such earning capacity as it would be reasonable for the litigant to take steps to acquire in the foreseeable future.  That is what judges do every single day of the week.  How do they do it?  They do it by listening to cross examination; by the provision of advertisements for suitable jobs; by the results of job applications; by considering the CVs of the parties; and the like.  They assess all this evidence.  It is extremely rare for an expert to be called.  Indeed, that was the case before the rules changed to require necessity.

21. Is it necessary for a judge to hear evidence from an expert?  I have already indicated in this judgment that I take the opposite view to Mr Buehrlen.  I fear that giving permission to rely on this evidence will make it less likely that this case will settle rather than more likely.  Such evidence tends to polarise parties.  The evidence is then challenged whether by questions to the expert or an alternative report. 

22. I read the report very quickly.  I cannot say that I read every line of it.  I asked myself "what is there in that report that needs it to be placed before the judge". I consider the answer to be "very little".  There are a number of tables in the report.  Those tables are publicly available.  Indeed, the expert who produces them has himself obtained them from publicly available information.  If it is considered that they are relevant, and I am not sure they are, they can be put into the bundle for the hearing.  The expert then says that he has seen all the job advertisements relied on by the husband but has done his own snapshot review over the past few weeks.  He then presents the results of his investigations at Appendix C.  It is absolutely clear to me that you do not need an expert to do that.  It is completely counterproductive and merely increases costs.

23. The expert then goes through a number of these adverts and comes to a broad conclusion as to the salary range that is available. He refers to a salary survey by the Jewellery magazine published in 2016.  Again, that is something that Mr Buehrlen could put into the bundle if he wishes to do so.  Paragraph 30 is the conclusion of the report.  It says, "the average annual band of gross income for designers in London and the South East is from £33,776, to £36,971 per annum gross which, in the author's view, supports the figure of £35,394 as a realistic earning capacity for an established jewellery designer drawn from the now slightly older Jewellery magazine survey."  I take the view that that is the role of the judge.  The judge hears the evidence, hears the cross-examination, comes to an assessment of the witnesses, including the individual characteristics and traits and abilities of the witnesses and decides what is the appropriate earning capacity to ascribe.

24. I do not believe that it is helpful or useful, in the vast majority of cases, to expand financial remedy proceedings to have this sort of expert evidence.  I am concerned that it will, in general, lead to more contested hearings, to longer contested hearings and to increased expense to the parties. 

25. I do not accept that this evidence is necessary.  I do not consider that it is imperative.  I do not consider that it is "demanded" rather than what is merely optional or reasonable or desirable.  I have therefore come to the clear conclusion that it is impossible to say that this Circuit Judge was wrong in the conclusion that he came to. Indeed, to the contrary, I am clear that, not only was he not wrong, he was in fact absolutely right.  The appeal is therefore dismissed.