de Renee v Galbraith-Marten (Rev) [2022] EWFC 118

The case: an application by Catherine de Renée for financial provision for the parties’ daughter. The mother bolstered her application by filing, without permission and in direct breach of the judge’s directions order, a further 25 page statement which included a forensic report by Sid Harding of SRH Forensics LLP. 

 

Ruling on admissibility: With considerable hesitation the judge agreed to read the report. However, he placed no weight on the contents of the report not only because of its filing in blatant breach of the law, but also because of the following matters.

 “at the end of an experts report there must be a statement that the expert understands and  has complied with the expert’s duty to the court”.

No such statement was appended to Mr Harding’s report.

Mr Harding appeared to have been shown documents which had been disclosed in earlier proceedings by the husband to the wife, without the court’s permission. Such disclosure would be a contempt of court by both the discloser and the recipient of the documents.

Mr Harding put forward his opinions based on the most flimsy of materials, without seeking the husband’s contribution or clarifications. This failure to seek any clarifications from the husband was considered egregious, and flew in the face of the most elementary rule governing an expert. It is basic, if you are going to put forward an expert’s report, that it must be objective. And objectivity requires, where there are lacunae, that clarification is sought from the other party before going into print.

In the absence of up-to-date and reliable evidence from the husband, Mr Harding’s conclusions were largely conjectural. His was a highly partial exercise.

 

The judge was surprised that Mr Harding, holding himself out as a partner in a firm that focuses on forensic accounting, should have been apparently entirely oblivious of the legal obligations that attach to people who hold themselves out as experts in court proceedings. The judge found it very difficult to accept that Mr Harding was unaware that the permission of the court was needed to instruct him in such proceedings.

 

The judge’s conclusion was that the process by which the report was produced was so flawed, and the material on which it was based so limited and conjectural, that it would be entirely wrong for him to place any weight on it whatsoever.

 

Learning points:

•             In a family case, do not accept instructions as an expert unless you are satisfied that the court has given permission for you to be instructed.
•             Ensure that your report complies with any procedural rules
•             Ensure that you have sufficient factual information upon which to base your opinion.
•             If you need further information or clarification in order to address an issue, ask for the information or clarification.