At this hearing the parties self represented, and when the full case report is read, most lawyers would successfully predict the outcome ! It was an indemnity application by W regarding the payment of the single joint experts (SJE) fees.
This long running case started in 2013, with the final financial remedy order being made in 2017. W issued enfacement proceedings in March 2019 (probably for the sale of property), whereupon the parties agreed amendments to the final order, compromising the enforcement action, which the judge approved. Although detail is short, it appears the judge missed out one detail in approving that agreement ! - see footnote[1].
In 2014 prior to the final order, the judge approved an SJE to report on H’s business interests, but with no limit on his costs (which he could have done pursuant to FPR r. 25(12)(5). The parties were provided with an estimate by the SJE of £60,000 + vat. However the SJE raised an invoice dated in September 2015 in respect of the preparation of the report which totalled £126,000, the quantum continuing to be an issue (particularly with H) until this hearing.
The final 2017 order provided at paragraph 4 that there be an order for sale of four properties and that the proceeds thereof be used inter alia to pay any unpaid fees of the SJE (plus any interest due and payable thereon). The later agreement provided for an indemnity for W re the SJE’s costs.
The finer details of what occurred between 2017 and present day are not for this short article, but what is worthy of note is what Mostyn J said at para 35 re SJE’s fees prior to instruction:-
‘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)’.
Most of the financial remedy cases in our area do not involve big money cases like this one but nevertheless it is always important to protect the clients by following Mostyn J’s comments.
[1] Para 30 In my judgment there is no good reason why I should not make any order other than one which gives effect to that provision in the Agreement. The parties reached a compromise of the enforcement application brought by the wife. One term of that compromise was to ensure that the wife was indemnified against the outstanding fees of Saffrey Champness (SJE). That term was approved by me. The accidental omission from the March 2019 Order of a formal clause containing an explicit indemnity cannot mean the husband can now seek escape responsibility to indemnify the wife. That is what he freely agreed to do, and he should be held to his agreement.
