Case No: 1678-3002-4805-2147
SITTING AT THE ROYAL COURTS OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MR. NICHOLAS ALLEN KC
(Sitting as a Deputy High Court Judge)
BETWEEN
BY | Applicant |
- and – | |
GC | Respondent |
Ms. Sally Harrison KC
(instructed by JMW LLP) for the Applicant
Mr. James Roberts KC
(instructed by Hall Brown LLP) for the Respondent
Hearing date: 15th July 2025
Draft judgment circulated to the parties – 18th July 2025
Approved Judgment
This judgment was handed down remotely at 10.30am on 24th July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
I am concerned with an application dated 1st July 2025 brought pursuant to the principles set out in Daniels v Walker; Practice Note [2000] 1 WLR 1382.
The application is brought by GC. It is resisted by BY.
In this judgment I shall refer to the applicant (who is the respondent in the financial remedies application) as ‘H’ and the respondent (who is the applicant in the financial remedies application) as ‘W’. No discourtesy is intended.
H was represented by Mr. James Roberts KC and W by Ms. Sally Harrison KC. I am grateful to counsel for the quality of their Position Statements and for their clear and focused oral submissions.
I heard this application on 15th July 2025 as part of a one-day directions hearing which followed a Private FDR Appointment before Mr. Nigel Dyer KC on 6th June 2025. I dealt with other applications on that date including a second Daniels v Walker application in relation to a property owned by the parties in Spain which was the subject of a short extempore judgment.
However, given the greater importance and factual complexity of this application I informed the parties at the outset of the hearing that I would most likely reserve judgment in relation thereto. I said I would circulate my judgment in draft by 18th July 2025 given its time-sensitive nature as the final hearing in this case is listed before me from 29th September 2025 with a time-estimate of seven days.
The parties’ costs to date are c. £2.3 million and they expect to incur further costs of c. £960,000 to the conclusion of the final hearing. The parties’ total anticipated expenditure on costs is therefore expected to be c. £3.3 million.
The law
Daniels v Walker was an appeal from a case management decision in a personal injury case where quantum alone was in issue. The first instance judge had refused the defendant leave to obtain and rely upon the evidence of his own care expert in response to a care report which had by agreement been jointly obtained. At p1383 Lord Woolf MR said the “appeal raises a point of some significance as to the approach which judges should adopt when a single expert who has been jointly instructed makes a report and one side or the other is unhappy with that report”.
The relevant procedural framework was said by Lord Woolf MR at p1386 to be CPR 1998 Part 1 (the overriding objective), r35.1 (the duty of the court to restrict expert evidence), r35.6 (the ability of the parties to put questions to experts) and r35.7 (the power to direct that evidence is to be given by a single joint expert (“SJE”)). All have their FPR 2010 equivalents.
Lord Woolf MR continued at p1387 as follows:
Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.
In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.
In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to plan until one is in a position to consider the position in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report.
Earlier in his judgment at p1386 when considering the Article 6 argument raised Lord Woolf MR stated (original emphasis):
Article 6 could not possibly have anything to add to the issue on this appeal. The provisions of the CPR, to which I have referred, make it clear that the obligation on the court is to deal with cases justly. If, having agreed to a joint expert’s report a party subsequently wishes to call evidence, and it would be unjust having regard to the overriding objective of the CPR not to allow that party to call that evidence, they must be allowed to call it.
It was not until GA v EL [2024] 1 FLR 1004 per Peel J – some 23 years after Daniels v Walker - that guidance was given as to how to determine such an application in a financial remedies case. All the previous cases in which guidance had been given were either civil cases (including personal injury, medical negligence, a neighbour dispute, and a dispute over why a car engine had failed) or children cases.
Financial remedies cases are legally and factually different from both civil and children cases. The former are also governed by the CPR 1998 where the test for admission of expert evidence at r.35.1 is that it “shall be restricted to that which is reasonably required to resolve the proceedings”and not that it is “necessary to assist the court to resolve the proceedings” which has been the test under the FPR 2010 since 31st January 2013. Children cases also differ because (i) provisions relating to the control of expert evidence are as set out in the Children and Families Act 1984 s13 (although s13(6) uses the word “necessary”); and (ii) there may be a relative scarcity of experts in a relevant discipline (see for example W v Oldham Metropolitan Borough Council [2006] 1 FLR 543 per Wall LJ (as he then was) at [35] and SK (Local Authority: Expert Evidence) [2008] 2 FLR 707 per Sumner J at [54]). Such scarcity of resources is less likely in a financial remedies case.
Although there had been a number of published financial remedy cases which referred to Daniels v Walker none had provided guidance as to the principles that applied in deciding whether or not to grant such an application and all said relatively little as to why the application had been granted or refused on the facts of the particular case.
From [25] – [28] of GA v EL (under the heading “The law on Daniels v Walker”) Peel J set out the following principles:
the “starting point” is FPR 2010 r25.4 and in particular sub-rule (3) and therefore the court may give permission only if it “is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings”;
Sir James Munby P’s definition of “necessary” in Re H-L (Expert Evidence: Test for Permission)[2013] 2 FLR 1434 at [3] (which in turn quoted from Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625) that it has a meaning “lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable” is equally applicable to financial remedy proceedings;
whether the further expert evidence is “necessary” will be informed by the approach advanced inDaniels v Walker (Practice Note) and subsequent cases includingCosgrove and Another v Pattison and Another[2001] CPLR 177,Peet v Mid-Kent Healthcare NHS Trust Practice Note[2001] EWCA Civ 1703,Kay v West Midlands Strategic Health Authority(unreported, 4th July 2007), andHinson v Hare Realizations Ltd[2020] EWHC 2386 (QB) from which the following principles can be derived:
the party seeking to adduce expert evidence of their own, notwithstanding the fact that an SJE has already reported, must advance reasons which are not fanciful for doing so;
it will then be for the court to decide, in the exercise of its discretion, whether to permit the party to adduce such further evidence;
when considering whether to permit the application, the following non-exhaustive list of factors adumbrated in Cosgrove and Another v Pattison and Another per Neuberger J (as he then was) may fall for consideration:
the nature of the issue or issues;
the number of issues between the parties;
the reason the new expert is wanted;
the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance;
the effect of permitting one party to call further expert evidence on the conduct of the trial;
the delay, if any, in making the application;
any delay that the instructing and calling of the new expert will cause; and
any other special features of the case; and
the overall justice to the parties in the context of the litigation; and
the words 'the overall justice to the parties in the context of the litigation'“encapsulate neatly the court's task”.
On the facts the wife’s application was refused for the following reasons (as set out at [33]):
it was brought too late in the day (under three weeks before final hearing);
consequently, it was not possible fairly to accede to the application without jeopardising justice to the husband, and the justice of the case as a whole. The husband would (i) have very little time prior to the final hearing to mount a challenge to the wife’s proposed expert report; (ii) not be able realistically to obtain and seek permission for his own expert; and (iii) although he may seek to rely on the SJE “it seems to me to be unprincipled that he should be somewhat forced into that corner because the alternative is an unwelcomeadjournment. And of course, the SJE is not his own expert, with whom he has been able to sit down and discuss the case in preparation for trial. The SJE might find himself in an uncomfortable position. By contrast, W and her chosen expert are fully aligned”;
it was not clear whether the experts would be able to answer questions, meet and prepare a schedule of areas of agreement/disagreement before the final hearing (with the SJE having indicated he would not be able to);
there was nothing to prevent the wife from putting to the SJE in cross-examination the questions and issues which have been raised by her proposed expert who no doubt would remain in place as a shadow accountant to assist;
the historic valuation issue was just one factor among many for the court to consider; and
the difference in figures between the SJE and the proposed new expert was relatively small (c. £1.6m on the ‘hindsight approach’ being the difference between £18.9m and £20.5m) and unlikely to have a material impact on the proceedings. That was particularly so given the parties appeared to agree there was a significant increase in value post-separation (albeit they disagreed about the reasons why), and the husband did not make a proposal based on a purely mathematical approach referable to the SJE report.
These figures should be considered in the context that the parties in GA v EL had been able to agree the division of non-business assets (described by Peel J at [9] as “relatively modest”) but had not reached agreement about the business interests. The parties received a total of c. £35m gross when the business was sold to private equity investors comprising a mixture of (i) cash; (ii) loan notes; and (iii) shares in the purchasing company. It was the proceeds of sale of the business which (per Peel J in the same paragraph) had “transformed the fortunes of the parties”. It was also as he said “a single-issue case”. At [15] Peel J said the difference between the experts of c. £1.6m in respect of the ‘hindsight approach’ was “a small percentage of the total assets in the case”.
In BR v BR [2024] 2 FLR 217 Peel J set out at [18] a non-exhaustive list of why the default position should be instruction of an SJE. This included [emphasis added]:
Should either or both parties be dissatisfied with the SJE report, it is open to them to make a Daniels v Walker application for permission to adduce their own expert evidence. I appreciate that this may lead to additional expert evidence, but experience suggests that in many cases parties are content, broadly, to accept the SJE's opinion, and those cases where there is a legitimate justification for additional sole expert evidence will be rare. It does not therefore automatically follow that to instruct a SJE will inevitably lead in due course to three experts (the SJE and two sole experts). Occasionally, one party will seek to rely on the SJE, and the other will reject the SJE's conclusions. In that case, if permission for the dissatisfied party to obtain their own expert is granted, there will be two experts. In those rare cases where both parties secure permission for their own expert, it may nevertheless remain helpful for the court to have the benefit of independent SJE evidence at trial. I am therefore unpersuaded that the court should routinely assume a gloomy prognosis about the future trajectory of expert evidence even before the SJE route has been explored.
In Cooper-Hohn v Hohn [2014] EWCA Civ 896 Ryder LJ (as he then was) observed as following:
[29] The language of the rule [i.e. r25.4(3)] is discretionary and an opinion upon the evidence is necessary. It is also permissive. Evidence may be admitted if the court is of the opinion that it is necessary, but cannot be admitted if the court is not of that opinion.
Although civil cases differ from financial remedies cases it is of note that:
in Kay v West Midlands Strategic Health Authority His Honour Judge MacDuff QC (as he then was) stated that “all relevant circumstances are to be taken into account but principally the court must have its eye on the overall justice to the parties. This includes what I have called the balance of grievance test …” (although unreported this passage from the judgment was quoted at [12] of Bulic (below)); and
in Bulic v Harwoods and Others [2012] EWHC 3657 (QB) Eady J stated inter alia that (i) (at [16]) where the court is concerned with a relatively “peripheral” issue as in Kay, it is likely to be only in unusual circumstances that the services of a SJE will be dispensed with; and (ii) (at [17]) the court is less likely to be ready to dispense with a SJE where the evidence is of a “non-technical” nature. On the facts, the issue to which the expert evidence went was far from peripheral. It was fundamental to the resolution of the main issue between the parties. It was also technical, and the court was likely to obtain more assistance from comparing two experts on technical matters than where the issue involves matters of “personal judgment, discretion and general impression based on experience” [21]. Further, bearing in mind the “balance of grievance” test in Kay, the claimant’s sense of grievance would be quite understandable if he had to go through a trial of the critical issue on liability while being barred from introducing and having the criticisms properly evaluated [24]. In addition, where the expert evidence was of a technical nature and far from peripheral, care had to be exercised when refusing to permit the appointment of a further expert on the basis that the case was not sufficiently “substantial” [29] and whether or not litigation is “substantial” cannot be solely determined by reference to the amount claimed [28]; and
in Hinson v Hare Realisazions Ltd – one of the cases cited by Peel J in GA v EL – Martin Spencer J stated at [21] that “In my judgment, the correct approach to applications by parties to abandon a single joint expert and adduce their own expert evidence is that set out by Eady J in Bulic’s case.”
Bulic therefore suggests that where one party would feel that justice has not been done because that party was not allowed its own expert in a case where (i) there are properly arguable grounds for criticising the report of the SJE; and (ii) the issue in question is both fundamental to the dispute and technical as opposed to being peripheral and a matter of “personal judgment, discretion and general impression based on experience”, an additional expert might well be appropriate.
However, the second of these two criteria begs the question as to what issues are properly the former rather than the latter. This question is particularly germane where (as in this case) an SJE has provided an opinion in relation to a private company, valuations of which are inherently fragile and uncertain given the exercise the valuer is engaged in is “an art and not a science” (as so described in H v H [2008] 2 FLR 2092 per Moylan J (as he then was)) and where “valuations are often a matter of opinion on which experts differ” (per Lord Nicholls of Birkenhead in Miller/McFarlane [2006] 1 FLR 1186 at [26]).
It may be arguable that those elements of an SJE forensic accountant’s opinion that are matters of judgment and discretion – for example what may properly be considered to be non-recurring costs, weighted averages for EBITDA and/or choice of multiplier - where different experts may validly hold different views and where alternative calculations can be done without the need for further expert input – are not ones where disagreement would justify a Daniels v Walker application succeeding and the challenging party should be limited to cross-examining thereon. This was an argument made by Ms. Harrison on W’s behalf. Conversely if the objection is a technical one – for example the construction of a particular accounting standard or a matter of foreign law – this may justify the application succeeding.
It is clear however from [88] – [92] of E v L(Financial Remedies) [2022] 1 FLR 952 that the issues between the experts included maintainable earnings and multiple, surplus assets, net asset value, and goodwill. Assuming it was the SJE’s opinion in relation to at least some of these issues to which the husband took “strong exception” (as it was described by Mostyn J at [13]) - and as a consequence both parties were permitted to adduce their own accountancy evidence - this may undermine the distinction in this context between fundamental and technical matters on the one hand and peripheral and matters of judgement/discretion on the other.
It is also important to emphasise that what represents the court’s task - the overall justice to the parties in the context of litigation - is fact sensitive. As Eady J observed in Bulic:
[16] … What represents justice between the parties will very much depend upon the facts of each case. For that reason, it can be distracting to focus too analytically on the reasoning in other cases, however authoritative, where the facts were not truly comparable. There are different factors to be taken into account and the importance of each is likely to vary according to the particular facts.
This application
At the First Appointment on 8th July 2024 I directed the parties jointly to instruct PwC to act as an SJE forensic accountant and to provide a valuation report in respect of the parties’ respective business interests. These were defined on the face of the order: 19 business interests of H’s and four of W’s.
The letter of instruction was dated 29th July 2024. The scale and complexity of PwC’s work can be seen by the fact that by an order made by me on paper on 6th May 2025 their fees have been capped at £622,000 plus VAT and disbursements.
PwC’s report, authored by Ms. Sarah Middleton, was duly provided on 9th April 2025 (amended on 16th April 2025) in relation to Company A and other entities (there are in fact two separate entities of relevance within the Company A structure but I have combined them for simplicity of exposition in this judgment) and on 9th May 2025 in relation to Company B and other entities. The two reports (excluding at least one Appendix) run to 315 pages. PwC replied to written questions from both parties on 28th May 2025. These run to a further c. 60 pages.
The PFDR Appointment took place on 6th June 2025. On 10th June 2025 H instructed Ms. Faye Hall of FRP Advisory Group Plc (“FRP Advisory”). She was provided with Company A’s management accounts to 31st May 2025. Her report was received on 1st July 2025. On the same date H’s application to rely on her report was made.
As to the amount in issue in this application, Mr. Roberts stated that PwC valued H’s direct/indirect interests in Company A at £27.675m as at 31st December 2024 and FRP Advisory valued it at £20.565m as at 31st December 2024 (i.e £7.11m less than the SJE) and at £18.435m as at 31st May 2025 (i.e. £9.24m less than the SJE’s 31st December 2024 figure). Ms. Harrison stated the difference between the figures was £7.308m as at 31st December 2024 and £9.496m as at 31st May 2025.
I am not wholly clear as to the reasons for the difference between these figures (it may be that Ms. Harrison’s does not include H’s indirect interests) but it was common ground that the c. £200,000 difference was not material to the outcome of this application.
Ms. Harrison submitted that in any event only the figures of 31st December 2024 should be considered as otherwise it was not comparing like-for-like and the further evidence had not been seen or considered by the SJE. Whilst I acknowledge that Mr. Roberts did not (to use his word) “abandon” the c. £9 million differential because he said if Company A is less profitable (and hence worth less) as at May 2025 than it was in December 2024 then this is the more up-to-date position and hence ought to be preferred, for the purpose of this application I agree it is fair that I use like-for-like and hence consider the sum in issue to be between c. £7.1m and £7.3m.
As to Company B, Mr. Roberts stated that PwC valued H’s interest as £1.3m whereas FPR Advisory valued it at £484,000 (i.e. £816,000 less than the SJE). Again, Ms. Harrison used different figures of £800,000 and £530,000 respectively (i.e. £270,000 less than the SJE) to which Mr. Roberts replied that the table from which the latter figures were taken dealt with a different issue. In any event again it was common ground that the difference between these figures was not material to the outcome of this application.
The difference between PwCs and FRP Advisory’s figures for Companies A and B is in the context of the agreed ES2 for this hearing stating that the parties’ assets total c. £105 million (using W’s figures) or c. £78 million (using H’s figures).
On H’s behalf it was submitted that:
FRP Advisory’s report is necessary in order to resolve a fundamental issue in proceedings, namely the fair computation of the assets in the case;
H is entitled to challenge the aspects of the SJE evidence he disputes. The admission of his own expert report is necessary for the court clearly and succinctly to understand the basis on which these aspects of the SJE report are challenged;
it is more efficient for the court to have the evidence on which H challenges the SJE valuations in an expert’s report, rather than from H directly as the expert still has their own overriding duty to the court, and the experts can be directed to meet and narrow issues and produce a schedule of agreement/disagreement (with explanation) – this overall makes the conduct of the final hearing more efficient;
H’s reasons for challenging the SJE are not “fanciful” – this is self-evident from the FRP Advisory report. Ms. Hall is an established and experienced forensic accountant and it is her opinion that:
PwC have used an inappropriate valuation methodology in relation to Company A. The SJE wrongly valued the entity by reference to an earning approach and multiple of revenue, rather than by net assets;
in any event the SJE’s revenue-based valuation of Company A and assumptions implied in that valuation are flawed;
the SJE uses flawed assumptions in her income-based valuation of Company B;
the following carry weight in the court’s exercise of its discretion:
the matter in issue is a fundamental one in proceedings. Computation of net assets in a sharing case could not be more crucial to the overall outcome. It is particularly so in this case when there will be unequal sharing of business assets (largely retained by H) as against liquid/copper bottomed assets (largely to be received by W);
H proportionately seeks to challenge only two aspects of the SJE report – his application is limited to two discrete issues, he does not seek an entirely new valuation exercise;
the new expert is required so the challenge to these elements of the SJE report is made in the most proportionate and efficient way, and to allow for narrowing of areas of disagreement if possible prior to the final hearing by experts who have an overriding duty to the court. This expert evidence will assist the court in its task of determining computation issues;
the admission of this expert evidence is likely to promote and assist the efficient conduct of the final hearing;
H made this application expeditiously following receipt of the SJE reports, the parties’ attendance at the PFDR Appointment on 6th June 2025 and on proper notice in advance of the subsequent directions hearing on 15th July 2025;
Ms. Hall has already written her report – its admission would therefore not delay the existing final hearing and there is more than enough time between 15th July 2025 and 29th September 2025 for the experts to meet and produce a schedule of agreement/disagreement. The seven-day hearing time-estimate still provides ample time for Ms. Hall to give oral evidence; and
the overall justice of the case requires admission of this evidence given the fundamental importance of the disputed valuation of the business interests in this case, which the court is yet to determine. H should not be de facto barred from challenging the SJE evidence when there is a cogent basis on which he does so.
On W’s behalf it was submitted that:
the SJE valued Company A as a sum of its constituent parts. Ms. Hall agreed with this approach;
the challenge to the SJE is limited to the value ascribed to Company A of £16m. The overarching challenge is as to the methodology adopted – i.e. that it should be valued on a net asset rather than a revenue basis;
Ms. Hall states that Company A continues to be loss making. In reaching this conclusion and rejecting a revenue-based valuation, she relies on management accounts to May 2025 which were not available to the SJE;
accordingly, Ms. Hall seeks to rely upon figures which were not available to the SJE in order to challenge her valuation methodology. The SJE has not has an opportunity to consider this additional evidence and it would be plainly wrong to allow further evidence as to methodology based upon figures not available to the SJE;
further, these issues have been considered by the SJE. For example, the issue of an alleged decline in markets was raised in H’s written questions. In answering H’s questions it is clear the SJE had firmly in her mind the losses made by Company A, the volatility in the market and the recent increase in the markets. She was asked specific questions about the continuing losses and concluded the multiple she had selected reflected the volatile/low/negative levels of profitability;
all of these matters can be put to the SJE in cross-examination and do not require a further expert report. They are not technical matters but are challenges to her methodology based upon further figures which she has not seen;
there is no merit in the critique of the earnings valuation based on the EBITDA and multiplier. The challenges Ms. Hall seeks to raise in relation to the choice of figures for estimated maintainable revenue, the choice of multiple and the impact of H’s involvement as a key man, are all matters which form the subject of cross-examination and do not require a second expert report;
as to Company B Ms. Hall agrees the SJE’s methodology. Accordingly, there is no technical challenge, this is simply a challenge to the figures used which is a matter for cross-examination;
if permission was given to H then W should not be required to rely on the SJE’s report. In this case the issue is particularly pertinent given the proximity of the final hearing, the intervening summer vacation and the lateness of H’s applications;
PwC produced their substantive report in relation to Company A on 9th April 2025. H raised extensive questions to which PwC responded on 28th May 2025. Their addendum business report dated 9th May 2025 addressed their value of the remaining companies including Company B. They provided answers to all questions in relation to this report by 28th May 2025. Accordingly, H has had since 28th May 2025 to seek his own valuation evidence and make a timely Daniels v Walker application;
in fact, his application was not made until 1st July 2025. His application has been heard on 15th July 2025, with approximately two months remaining before the final hearing;
in the event that permission is granted to H to rely on Ms. Hall’s report, then the SJE must also produce an updated report on the basis of the same evidence which has been made available to Ms. Hall but not seen by the SJE;
it appears that it took Ms. Hall almost five weeks to produce her report of 1st July 2025 assuming that she was instructed on 28th May 2025 (in fact she was instructed on 10th June 2025 and therefore it took her about three weeks);
the time of year and that W will be coming from a “cold start” with an expert, (it was expressly confirmed that W would not be using her ‘shadow’ expert who drafted the written questions to the SJE) she is likely to need at least six - eight weeks to produce her own report. Thereafter, an agenda would have to be prepared and thereafter all experts would have to meet and prepare a schedule of matters agreed and in dispute. This is at least another two weeks thereafter;
this timetable takes matters to 18th September 2025 assuming all experts can meet immediately after W’s report is available;
it is readily apparent that this is unworkable with a final hearing due to commence on 29th September 2025; and
in addition to the timetabling issues, the witness template and estimated length of hearing of seven days does not accommodate further expert evidence.
As I have already noted, in both in her written and oral submissions Ms. Harrison submitted that H’s challenges to the SJE report were not “technical” in the Bulic sense I have identified above.
In his oral submissions Mr. Roberts considered that W had made no application for her own expert if his application succeeded and ought to have done so. However, if I considered that fairness justified W to be able to instruct her own expert notwithstanding the significant expense of the SJE, no application having been made by her for such an expert and (he submitted) no challenge to the SJE’s evidence having been made by her, then I could hear such an application and even if this succeeded then this could be done without jeopardising the effectiveness of the final hearing.
In her oral submissions Ms. Harrison stated that although her primary position was that H’s application ought to be dismissed her secondary position was that the additional information that was sent to FRP Advisory should be sent to PwC who can be asked to consider this information and whether it changes their view as to the valuation methodology of Company A (and if so why and if not why not). Ms. Middleton can then be cross-examined thereon if appropriate at the final hearing.
Analysis
I do not consider that H has delayed in bringing this application. The PFDR Appointment was heard on 6th June 2025. Ms. Hall was instructed on 10th June 2025 and the fact that a Daniels v Walker was to be made in advance of the directions hearing was also made clear in H’s open proposals of the same date so W’s solicitors were openly on notice by no later than this date. I am of course not entitled to know what was said at the PFDR Appointment but it would not be surprising if it had been said on H’s behalf on that date that if agreement was not reached a Daniels v Walker application would be made to be heard on 15th July 2025. Ms. Hall’s report was received on 1st July 2025 and the application was made on the same date. I reject the submission that the application ought to have been made very soon after 28th May 2025 (when PwC’s answers to the parties’ written questions was received). This is not materially earlier in any event but more importantly the focus at such a time ought to have been on preparing for the imminent PFDR Appointment and making and considering offers of settlement. It was not a time to incur the costs of preparing an application that would only be required if agreement was not reached either at the PFDR Appointment or soon after.
I also accept that the application is made for reasons that are not “fanciful”. This is self-evident from the FRP Advisory report which runs to c. 75 pages and is a full and reasoned report that both explains why its author would choose an alternative valuation methodology for Company A (i.e. a net asset rather than earnings-based valuation) but also critiques the figures adopted in the valuation methodology chosen. It is likewise fully reasoned in relation to its critique of the valuation methodology chosen for Company B.
However, notwithstanding this I do not consider that admission of the FRP Advisory report is necessary to assist me to resolve the proceedings. This is for the following reasons:
in H v H Moylan J (as he then was) observed at [5] that to argue the application of the sharing principle raises powerful forces in support of detailed accounting is to misinterpret the exercise in which the court is engaged which is a broad analysis and not detailed accounting.
As he continued in the same paragraph the purpose of valuations in this context “is to assist the court in testing the fairness of the proposed outcome” and “not to ensure mathematical/accounting accuracy, which is invariably no more than a chimera”. A business valuation “is no more than a broad, or even very broad, guide”. More recently in Martin v Martin [2019] 2 FLR 291 Moylan LJ stated that:
[92] … given that my views have not changed from what I said in H v H, I can see no reason why we should depart from the conclusions and guidance set out in [Versteegh v Versteegh [2018] 2 FLR 1417], namely that valuations of private companies can be fragile and need to be treated with caution. Further, it accords with long-established guidance and, I would add, financial reality.
This paragraph has recently been cited with approval in PN v SA [2025] EWFC 141 per Cobb J (as he then was) at [165].
The exercise in which the court is engaged is a broad analysis and not detailed accounting whether each class of assets is to be shared equally, whether there will be unequal sharing of each class of assets but an equal division overall (which although no net effect is attached to W’s open proposals of 27th June 2025 I understand to be her position with the illiquid/risk-laden business assets largely to be retained by H and the liquid/copper bottomed assets largely to be retained byW) or whether there will be an unequal division overall to reflect the difference in character between the different classes of assets that each will retain (which is H’s position as set out in his open proposals of 10th June 2025);
Moylan J’s observation in H v H at [5] that the purpose of valuations in this context “is to assist the court in testing the fairness of the proposed outcome” finds further expression at [122] when he stated that “[i]t is trite to say that the pivotal factor in every case is to ensure that the award is fair” and that “[o]nce the relevant building blocks have been assembled into a provisional structure, it is in my view essential to undertake a global assessment of the fairness of the proposed award”. This “global assessment of fairness” of my proposed/provisional outcome is something I shall undertake at the forthcoming final hearing and the PwC valuation will assist me in so doing. It is not “necessary” for me also to have the FRP Advisory report in order to be able to do this.
I therefore disagree with Mr. Roberts that the matter in issue is a “fundamental” one because computation of the net assets in a sharing case “could not be more crucial to the overall outcome” and that this is “particularly so” in a case where it is common ground that there will be an unequal sharing of different classes of assets;
I accept that difference of c. £7.1 million – c. £7.3 million between PwCs higher figure and FRP Advisory’s lower figure is significant whether the assets total c. £105 million using W’s figures (which includes an asserted addback of c. £13.5 million) or c. £78 million using H’s figures as per the agreed ES2 for this hearing. It therefore cannot be said (in contrast to GA v EL) that the difference represents a small percentage of the total assets in the case. However notwithstanding this differential, given the nature of the exercise I will be engaged in and the overall quantum of assets available for division between the parties, the SJE valuation will be sufficient (again in the words of H v H) to assist me in testing the fairness of my proposed outcome. Again it is therefore not “necessary” for me also to have the FRP Advisory report in order to be able to do this
It is relevant in this context that, as Peel J observed in HO v TL [2024] 2 FLR 175, at [21] when setting out the legal principles that apply to business valuations, it is for the court and not the expert to determine the value. In Neil v Neil [2020] 1 FLR 1095 Moor J put the same point pithily at [53] when considering the expert evidence of an SJE who had been instructed to investigate several disputed emails – “[t]he expert advises but the judge decides”. Both comments are wholly consistent with the judgment in TUI UK Ltd v Griffiths [2023] UKSC 48 per Lord Hodge(original emphasis):
[36] … It is trite law that the role of an expert is to assist the court in relation to matters of scientific, technical or other specialised knowledge which are outside the judge’s expertise by giving evidence of fact or opinion; but the expert must not usurp the functions of the judge as the ultimate decision-maker on matters that are central to the outcome of the case.
I do not agree with Mr. Roberts that W’s suggestion that she would wish to instruct an expert of her own is (in his words) a “makeweight” as shown (he said) by the fact that W’s own D11 application notice of 9th July 2025 sought solely an updated valuation of a London property, that H complete his Replies to a Schedule of Deficiencies, and for him to reply to further questions arising from his updating disclosure, and she could and should have (but did not) sought her own valuation if she was serious in this regard if H’s Daniels v Walker application succeeded. Such an application is not made simply by “adding one line” to the D11 application notice as Mr. Roberts submitted: as he submitted elsewhere it is not an application to be made lightly (he rightly described them as “rare and considered” applications that are (usually) made “with reluctance”) - as parties most often accept the SJE opinion - and they incur considerable costs. They are almost inevitably supported by some form of written evidence by the proposed new expert (even if not always a full report as in this case) which provides at least some critique of the SJE report to ensure it cannot be said that the challenges thereto are “fanciful”. Making such an application would have incurred significant costs when W’s primary case is that the evidence should be given by the SJE alone;
if I acceded to H’s application I am of the view that it is inevitable that W would be entitled to instruct an expert of her own. Otherwise H’s challenge to the SJE’s report (or part thereof) by way of a successful Daniels v Walker application would leave W with a sense of injustice, because what was initially an equally balanced approach (the SJE “being ever-mindful of the need towalk straight down the middle of the road” to quote Vernon v Bosley (Expert Evidence) [1998] 1 FLR 297 per Thorpe LJ at p302 (as cited by Mostyn J in Gallagher v Gallagher(No. 2) (Financial Remedies) at [46])) is now unbalanced. That is because the SJE would find herself in a position of dealing with H’s arguments for a lower value without considering W’s (potential) counter-arguments for a higher value. This is to what Mostyn J referred in E v L (Financial Remedies) when he referenced at [13] the need “to maintainequality of arms” and allowed both parties to appoint their own experts in addition to the SJE (and which was cited with approval in CG v SG [2023] EWHC 942 (Fam) per His Honour Judge Hess (sitting as a Deputy High Court Judge) at [9] (viii) where he referred to “the promotion of fairness between the parties” as being one reason he had allowed a Daniels v Walker application and where again both parties were permitted to appoint their own experts in addition to the SJE).
To do otherwise (to adopt the language used in Kay v West Midlands Strategic Health Authority by His Honour Judge MacDuff QC (as he then was)) would in my view not dooverall justice to the parties and would in consideringthe “balance of grievance test” leaveW legitimately aggrieved. The possibility of W instructing her own expert is therefore far more than simply a “distraction” as Mr. Roberts characterised it;
therefore as in GA v EL it is not possible fairly to accede to H’s application without jeopardising justice to W and consequently the justice of the case as a whole. W is clear that she would not want to rely on the SJE (she has put her own written questions to PwC and Ms. Harrison stated she intended to cross-examine the report’s author at the final hearing). I therefore do not agree with Mr. Roberts that it can be said W has not “challenged” the PwC report. Further W should not have to rely on the PwC report: I agree with Peel J’s view in GA v EL that the SJE is not W’s own expert, with whom she has been able to sit down and discuss the case in preparation for the final hearing, that the SJE might find herself in an uncomfortable position and, by contrast, H and his chosen expert are fully aligned;
the parties separated in May 2021 (more than four years ago). The Form A was issued in March 2023 (more than two years ago). The First Appointment was heard on 8th July 2024 (more than one year ago). The final hearing was originally listed to commence on 2nd June 2025 but was adjourned and relisted due to delayed receipt of expert evidence. It is unconscionable to consider any further delay in this case or that justice would be done to both parties by rendering the final hearing ineffective.
I agree in this context with Peel J that (although it is not what W seeks in any event) it would be unprincipled that W should be somewhat forced to rely on the SJE because the alternative is an unwelcome adjournment. I accept that (for whatever reason) W intends to instruct a new expert and not the author of her written questions. It would therefore be a ‘cold start’. It took Ms. Hall three weeks from receipt of formal instructions to prepare her report. Given that it is likely that work will (at best) slow in this case in the forthcoming weeks over the summer there may be little more than six fully effective working weeks between now and final hearing. The reality is therefore that there would be insufficient time for W’s newly instructed expert to prepare a report and for the experts thereafter to meet and prepare a joint statement of matters agreed and in dispute. This concern is not ameliorated by the fact that Ms. Hall has already prepared (in Mr. Roberts’ words) a “full” report. PwC would also need to update their report utilising the same information that was provided to FRP Advisory before the experts meet.
My concerns in this regard are only heightened by the fact that Mr. Roberts did not know if diaries aligned in relation to PwC’s ability for what he suggested would be a “relatively swift meeting” between the experts (albeit I was told that Ms. Hall can “make herself available”). Aligning with W’s new expert would only complicate scheduling further.
I therefore disagree with Mr. Roberts’ submission that “nothing here can derail the timetable”. An adjournment of the final hearing becomes all but inevitable. Refixing the same to accommodate the diaries of both parties’ leading and junior counsel and my own means it is inevitable that the hearing would not be relisted until well into 2026. Given the procedural history this would unjust and unfair to both parties;
I acknowledge that H had adopted what might be said to be a proportionate approach in seeking to challenge solely two of the 23 entities valued in PwCs reports. However there is force in Ms. Harrison’s submission that (i) H has chosen to provide updating disclosure in respect of these two business interests in order to seek to revisit the SJE’s conclusions rather than updating them all (and it therefore not known whether any of his other business interests have perhaps increased in value); and (ii) if his application succeeds all the entities will no longer be being valued as at the same date. This risks both unfairness and consequently not doing justice to both parties;
I also consider it relevant (as Ms. Harrison’s submitted) that nowhere in H’s written questions to PwC was it said that because Company A was loss-making an earnings-based valuation was wrong and it should be a net asset valuation. The SJE is asked solely about her choice of figure for the earnings-based valuation. However whilst I agree that this is relevant in my overall consideration I do not go so far (as Ms. Harrison submitted) to say that if this was genuinely a challenge to methodology it would have been in the written questions but was not. In his response to this point Mr. Roberts submitted that it is not a fair approach to take into account a failure to ask “one particular question” when considering whether or not to accede to an application of this nature. He stated it cannot mean that a party is “disbarred”. I certainly agree with his latter submission but do not agree with his formulation of the former one. A failure to ask a written question on the issue in dispute is properly one of the non-exhaustive circumstances that may be taken into account; and
as to Ms. Hall’s challenge to the valuation of Company B (where of course the difference between the respective figures is much smaller) this is a difference of approach between her and Ms. Middleton as to the earnings basis of valuation. As I understand it the SJE considered the company’s income in perpetuity whereas FRP Advisory consider the value of its income stream less tax. I accept (as Mr. Roberts submitted) the two experts in conversation may reach a consensus on this. However they may not. In any event this difference of approach is not in my view a reason to accede to an application of this nature. As Ms. Harrison submitted the nature of Ms. Hall’s challenges to the SJE’s figures and H’s dissatisfaction with her answers to his written questions in relation thereto are insufficient (considered in isolation) to ground a successful Daniels v Walker application. As Lewison LJ observed in Versteegh v Versteegh [2018] 2 FLR 1417 at [185] when setting out the various reasons why valuations of private companies are “fragile”, “even where valuers use the same method of valuation they are likely to produce widely differing results”.
I accept there was some force in Mr. Roberts’ submission that it is too quick and easy an answer to a Daniels v Walker application to say simply that the questions can be put to the SJE in cross-examination with those questions being drafted in whole or in part by the proposed expert who (in Peel J’s words in GA v EL) “no doubt would remain in place as a shadow accountant to assist” (and in BR v BR (No. 2)[2025] EWFC 88 it is clear from [51] that W’s shadow accountancy team were present in court whilst the SJE gave her evidence) because:
I accept that absent a successful Daniels v Walker application it can fairly be said that there is no formal evidential basis to put alternative valuation methodologies and/or figures to SJE. To put the same point in a different way I accept there is a difference in weight between a court-appointed expert giving their opinion and the same points being put in counsel’s cross-examination of the SJE and that when considering fairness (in Mr. Roberts’ words)“the best evidence is evidence” of which the court should not deprive itself and in particular when this is opinion evidence;
I accept that a party having their own expert allows a court to ask its own questions of him/her whether arising out of the SJE’s report or otherwise;
I acknowledge that in BR v BR (No. 2) Peel J was critical of a party attempting to give expert opinion evidence. At [83] he deprecated the wife’s attempt to introduce purported expert evidence through the back door of an unsigned open offer on the basis that it was elementary that expert evidence is only admissible if the court has granted permission under FPR Part 25 and at [84] he deprecated the inclusion of some of the content in W’s s25 statement which did not contain only evidence but “inappropriately veered into argument, and regurgitated expert evidence from advisers behind the scenes”; and
I accept that although the ability to cross-examine was one of the reasons given in GA v EL for the husband’s application to be refused this ought not to be elevated above the other reasons for refusal including that the application was made just weeks before the final hearing, it was unclear whether the experts would be able to meet, the difference between the experts’ figures was relatively minor in the context of the case, and the ‘historic’ valuation issue was just one factor for the court to consider. The observations of Peel J in this respect need to be seen in that context.
However, there is also some force in Ms. Harrison’s response that if this argument is taken to its logical conclusion then a Daniels v Walker application would succeed in every case if a party did not agree with the answers to written questions as counsel’s cross-examination could always be said not to be a fair substitute for opinion evidence in an expert’s report.
Although I accept there is force in these submissions made by Mr. Roberts in my view they do not outweigh the reasons for not granting the application when (as I must) I consider theoveralljustice to the parties (not just one party) in the context of the litigation.
In reaching my decision I reject Ms. Harrison’s submission that in reaching her conclusion that Company A continues to be loss making and hence a net asset valuation is to be preferred over a revenue-based valuation (i) Ms. Hall relied on management accounts to May 2025 which were not available to the SJE (who used filed accounts to March 2024 and management accounts from April 2024 - November 2024); (ii) accordingly Ms. Hall seeks to rely upon figures which were not available to the SJE in order to challenge her valuation methodology, figures that the SJE has not has an opportunity to consider; (iii) it would be wrong to allow further evidence as to methodology based upon figures not available to the SJE; and (iv) I do not know what Ms. Hall’s like-for-like opinion would have been nor the impact that that this additional information has had on her opinion. Having considered with care the paragraphs in Ms. Hall’s report that counsel took me to, I agree with Mr. Roberts that it is tolerably clear that her opinion is not dependent on these management accounts (stating that the company had been loss making based on its filed accounts for the previous two years and continued to be loss making as demonstrated by the management accounts). From Ms. Hall’s perspective it seems the later figures simply bear out what would have been her opinion in any event.
For completeness I should record that at the conclusion of his oral submissions Mr. Roberts raised the wider point that notwithstanding the views expressed by Peel J in BR v BR the court in financial remedy proceedings should perhaps default to the instruction of SJEs less readily and be more willing to allow parties to instruct their own experts. This is not a point that requires consideration in the context of the application before me.
Conclusion
In considering whether the further expert evidence is “necessary” I have taken into account the nature of what will be my task at the forthcoming final hearing. I have also considered those of the non-exhaustive list of factors adumbrated in Cosgrove and Another v Pattison and Another that are relevant to this application with a particular focus on the overall justice to the parties in the context of the litigation (which encapsulates my task). I have also taken into account the other matters listed by Peel J in GA v EL and the same judge’s observations in BR v BR.
I have also borne in mind that as set out in FPR r1.1(1) the rules are a procedural code with “the overriding objective of enabling the court to deal with cases justly” and that at r1.2(1)(a) the court must seek to give effect to the overriding objective when it exercises any power given to it by the rules. In Bulic at [16] Eady J emphasised the importance of the overriding objective in CPR r1.1(1) - which is in materially the same terms to that in the FPR - in determining a Daniels v Walker application.
Having done so I am of the clear opinion that the expert evidence is not necessary to assist the court to resolve the proceedings.
I tentatively suggest that in an appropriate case the distinction drawn in the civil cases between ‘peripheral’ and/or ‘non-technical’ and ‘fundamental’ and/or ‘technical’ may also be a relevant one in financial remedies cases. If so, in a case concerning the valuation of corporate interests consideration can be given as to whether challenges to valuation methodology are (as Ms. Harrison submitted) not ‘technical’ but are matters of “personal judgment, discretion and general impression based on experience” (per Eady J in Bulic at [21]) and therefore would not justify the granting of a Daniels v Walker application. However, I am conscious that this is not a principle identified in GA v EL by Peel J at [28] and I do not need to consider the possible relevance (or otherwise) of this distinction further in order to determine this application.
In my view the proportionate approach is to adopt Ms. Harrison’s secondary position and that the additional information that was sent to FRP Advisory should be sent to Ms. Middleton at PwC and for her to be asked to consider the same and whether it changes her view as to the valuation methodology of Company A (and if so why and if not why not).
I acknowledge (as Mr. Roberts submitted) this does not remedy the issues raised by Ms. Hall in her report but it is not designed to do so. It will however mean that both parties (and their advisors) know of Ms. Middleton’s response in advance of the final hearing and this may therefore reduce the issues upon which she is required by the parties to give oral evidence at the final hearing.
H’s application dated 1st July 2025 is therefore refused.
Costs
I have already reserved the costs of the other applications I determined on 15th July 2025 to be dealt with at the final hearing on the basis that it was not appropriate for me to determine the same prior to my determination of this application. I shall likewise reserve the costs of this application.
As I stated at the hearing on 15th July 2025 the parties are to inform each other in good time before the final hearing as to which applications (if any) they seek costs and the specific sums sought in relation thereto supported by N260s ensuring that costs not referable to that particular application(s) are not included. I anticipate that this will require some careful apportionment which will need to be clear to the other party and to me at the final hearing.
That is my judgment.