EXPERTS GOING ON A FROLIC: A FAMILY LAW CASE WHERE THE EXPERT WITNESS WAS “THOROUGHLY UNHELPFUL”

The conduct of experts has been considered many times on this blog.  There is an interesting example of problems caused in the context of family law in M -v- M [2015] EWFC B63.  Here we have an expert going well beyond her remit and causing additional complication and expense which, most probably, harmed the party that commissioned her. (There are also some interesting observations in relation to life expectancy).

THE CASE

HH Judge Wildblood QC was asked to consider financial matters in relation to a couple. Both had ceased working. Their main home had been sold and the assets distributed equally.  The main issue related to the distribution of pensions.  The part of the judgment of interest to us is a report from an (unnamed) Independent Financial Adviser.

  1. “Submissions about life expectancy – In her unhelpful report at D69 Ms P, an IFA instructed by Mrs M, stated that the average life expectancy from birth of a male born in the UK is 78.9. She accepted in evidence that she had given that figure in a creative attempt to allow a suggestion of some apparent equalisation of life expectancy between the two parties. I do think that that was thoroughly unhelpful, as Ms Hussey accepts and Ms P appeared to recognise in her evidence. It does not help to state the expectancy of a new born child when reporting on the life expectancy of a 70 year old. Mr M’s life expectancy is between 15.8 and 17.2 years (At a Glance).
  2. Ms Hussey has submitted that ‘the normal life expectancy for a 57 year old woman is 31 years (see At a Glance table 15). On the evidence the court cannot conclude where within the range W will fall other than to say it is at least 2 ½ and could be 10 years if she falls within the one third category. What, of course, is unpredictable is what advances there will be in medical science during that period which will further improve survival rates. H’s life expectancy according to the same table is between 15.8 and 17.2 years although the IFA quotes statistics that average male life expectancy is 78.9. It is therefore possible that despite her medical condition W would outlive H’
  3. With respect to Ms Hussey, even that analysis is not correctly based when the medical evidence is read. The medical evidence is that ‘approximately 1/3 of patients will still be alive at 10 years although the average median survival is approximately 2 ½ – 3 ½ years’ – it does not say that 1/3 will survive only to 10 years. I accept Ms Hussey’s submission that, as medical care advances, there may be some extension of that period (- there have been considerable advances in treatment of cancer).
  4. The upshot in my opinion is that there is great uncertainty about the life expectancy of Mrs M. Based on the median figures it has to be recognised that Mrs M is very likely to have a reduced life expectancy but it is pure guesswork as to how reduced it may be. Statistically it could be that she will survive for only a few more years. It is possible that she will survive for significantly longer. I accept Ms Hussey’s submission that it would be wrong to discriminate against or in favour of Mrs M on the basis of her ill-health, although I question whether it was necessary even to state that obvious principle.
  5. What is more I think that it is important to recollect the vagaries of arguments based on life expectancy. This case was transferred to me because it was felt that the facts of it were very unusual. As matters now appear I do not think that the distributive factors are particularly unusual; by way of example if, for the specific fact that Mrs M has cancer, one were to replace that factor by simply stating that Mrs M has a limited and uncertain life expectancy there would be nothing particularly unusual about that. Life expectancy is not a science. Similar uncertainties could have been advanced if, for instance, Mr M had married a woman who was now 80 (ten years older than him). Or, if he had married a woman who was now 75 and drank more than 21 units of alcohol (i.e. about three bottles of wine) a week. Or if he had married someone in a high stress job. Following the analysis of Duxbury awards from the case of White, I could not possibly approach this case on the basis that Mrs M would sip her last glass of terrestrial champagne on a certain date.”

The judgment goes on to consider that report in more detail.

  1. Mrs M instructed an independent financial adviser, Ms. P, who has filed a report at D65 and who gave oral evidence. Ms P’s evidence about the availability of pension ‘products’ that are available on the market and, in particular, enhanced annuities, was helpful. However, for reasons that I do not know, her evidence and report strayed well beyond that of an IFA and sought to trespass on to the territory of Ms Routledge, making recommendations about pension sharing outcomes. In that latter respect I found her evidence to be very far from helpful for these reasons:

i) Her report made no attempt at considering the position of Mr M. She wrote her report on the basis of what she considered would place Mrs M’s welfare as the paramount consideration. That is perhaps not surprising when she was involved in giving advice to Mrs M about what was best for her (Mrs M was her client). It did not help me at all, however, when trying to find the fair solution as between these two parties.

ii) She sought to depart from the views of the trustees of the Nortel pension and of the jointly instructed expert, Ms Routledge in relation to the Nortel pension. As a result she based her figures in relation to that pension on incorrect assumptions (D68). Her assumptions were not put the jointly instructed expert before being advanced.

iii) She added back into the pensions, pension lump sums that had been drawn by Mr M in 2009. Those sums had been applied as capital six years ago. Further there has been the equalisation payment by Mr M to take account of this (that is the £93.3k payment made by Mr M last year). So adding them back in, even notionally, was without any foundation at all and led to waste of time and money as well as adding to the density of the case that I had to hear.

iv) She made unhelpful remarks about Mr M’s life expectancy in the mistaken attempt that I have described to equalise life expectancies.

v) She took the wrong date for the time at which Mrs M could obtain the state pension (saying that it was 12 years away at D68) and then excluded the state pension of Mrs M in its entirety.

vi) She made a detailed recommendation about the division of the pension funds without considering the income consequences of this (D68) and did not make any attempt, in particular, to consider the effect on Mr M.

vii) She acted apparently without a disclosable letter of instruction and so the basis of her report could not be identified and purported to give opinion (i.e. expert) evidence without following any of the very necessary provisions of Part 25 of The Family Procedure Rules 2010.

WHY DOES THIS MATTER?

This was a case where no order for costs was made (paragraph 94). Mrs M had taken out a mortgage and incurred £60,000 in costs. The judge observed:-

  1. Finally, I would wish to say that I regard Mr and Mrs M as thoroughly decent people on what I have seen of them. I would wish them both well in the future, whatever it might hold. I hope that Mrs M does not think that the circumstances of her health have been dealt with other than sensitively. I well understand what she meant when she said that she started these proceedings just seeking a divorce and that the ‘whole thing has just snow-balled from there’. It is very unfortunate indeed that so much expense has been created in resolving a case by making modest adjustments to shared pension entitlements and a very modest lump sum.”

IN SUMMARY: UNHELPFUL EXPERTS CAN, AND WILL, COST YOU MONEY

This expert appears therefore to have:-

  • Charged the client for a report which was “positively unhelpful”.
  • Greatly increased the complexity of the issues in the case.
  • Increased the costs of the case unnecessarily in circumstances where these costs were not likely to (and were not) recovered.

Further, as the judge noted, these were not high earners. Both had retired and the sums involved were modest. The parties had already instructed a joint expert, it is difficult to see what was to be gained. In the circumstances the judge’s comments were quite restrained.  The case was not quite at the Seagrove -v- Sullivan level, however given the modest incomes and assets of all concerned this “extra” expert was “far from helpful”.

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