PUTTING A CAP ON THE COSTS OF A SINGLE JOINT EXPERT: AN UNHAPPY TALE WITH LESSONS TO BE LEARNT

For the second time today I am writing about a case concerning a jointly instructed expert. In Loggie v Loggie [2022] EWFC 2 Mr Justice Mostyn had to determine who should pay the costs of an expert whose final costs were much higher than the original quotation.

“The moral of this unhappy tale is that the parties must ensure that the court is asked, prior to the instruction of a SJE, to place a cap on the expert’s costs”

THE CASE

During financial remedy proceedings the judge gave permission to the parties to instruct a single joint expert in relation to the valuation of the husband’s business affairs.  The expert reported, however the report was far more costly than the original quotation. The (former) wife brought an application for an order that the (former) husband pay half of the costs of the expert. The judge made the order sought by the wife.

THE QUOTE AND THE COSTS

The judgment sets out the history of the dealings with the expert.

5. On 6 June 2014, I granted permission for the parties to instruct Mr Lane of Saffrey Champness on a single joint expert basis to prepare a report on the husband’s business interests. On that occasion I ordered that Mr Lane’s costs be met equally by the parties in the first instance.

1. 1. That order did not limit the amount that could be paid by way of fees and expenses to Mr Lane. I could, however, have directed that there be such a limit pursuant to FPR r. 25(12)(5). The absence of such a limit was not abnormal. The consequence of the absence of such a limit is that Mr Lane was entitled to be remunerated on a quantum meruit basis and not be limited by any estimate.

1. 1. Before Mr Lane commenced work, the parties were provided with a quotation for the preparation of the report in the sum of £60,000 plus VAT (i.e. £72,000 inclusive of VAT).

1. 1. Mr Lane ultimately raised an invoice of almost twice the amount the parties had anticipated. His invoice dated 30 September 2015 in respect of the preparation of the report totalled £126,000. I understand that figure is inclusive of VAT.

1. The quantum of the 30 September 2015 invoice has now been in issue for more than six years.

THE IMPORTANT ISSUE: LIMITING THE COSTS OF EXPERTS

The moral that that judge draws in relation to family proceedings may be just as true in relation to any type of civil proceedings. The costs of the expert must be known, and agreed, prior to instructions being sent.

The moral of this unhappy tale is that the parties must ensure that the court is asked, prior to the instruction of a SJE, to place a cap on the expert’s costs pursuant to FPR r. 25(12)(5). Prior to the court making an order for the instruction of an SJE, there will have been preliminary enquiries raised with the proposed expert and responses given thereto. By virtue of PD 25D para 3.4, incorporating PD 25B para 8.1(e), the expert will have stated his/her costs, including hourly or other charging rates, and the likely hours to be spent conducting interviews, writing the report and attending court. The court will thereby be fully equipped to be in a position fairly to consider these figures and to impose a cap on the expert’s costs. Of course, should circumstances unexpectedly change causing far more work to be done by the expert, then it will be open for the expert to apply for the order imposing the cap to be varied under FPR r 4.1(6).