Buehrlen v Buehrlen

Expert evidence in financial remedy proceedings may be permitted only where it is necessary to assist the court to resolve the proceedings. Evidence that is merely useful, reasonable or desirable does not meet that threshold. Judges ordinarily assess earning capacity from the parties’ evidence, including cross-examination, job advertisements, applications and CVs. An appeal against a case-management decision is confined to review unless a rehearing is required in the interests of justice. The appeal succeeds only where the decision was wrong or unjust because of a serious procedural or other irregularity. A discretionary case-management decision must fall outside the range of reasonable decisions before an appellate court may interfere.

The husband appealed from a case-management decision refusing permission to instruct a single joint employment consultant in financial remedy proceedings. The proposed evidence concerned the wife’s earning capacity. The lower court considered that the evidence might be helpful but was not necessary, and that earning capacity could be assessed by the judge using ordinary evidence.

The appeal raised whether the lower court had applied too high a threshold under the Family Procedure Rules, whether the evidence was necessary, and whether the appellate court could substitute its own view of the case-management decision.

1. The appeal was a review of the lower court’s decision. Under rule 30.12, the appeal could be allowed only if the decision was wrong or unjust because of a serious procedural or other irregularity. No serious procedural irregularity was established.
2. The test for expert evidence was necessity. Applying Re TG [2013] EWCA (Civ) 5 and Re HL [2013] EWCA (Civ) 655, evidence that was indispensable fell within the necessary category, whereas evidence that was useful, reasonable or desirable did not. The test applied across family proceedings, including financial remedy proceedings.
3. Judges routinely assess earning capacity under s.25 of the Matrimonial Causes Act by considering cross-examination, job advertisements, job applications, CVs and other evidence. The proposed expert’s tables were publicly available, and his review of job advertisements did not require expert assistance. His broad salary conclusion was itself an assessment for the trial judge.
4. The proposed evidence risked increasing costs, polarising the parties and prolonging the proceedings. It was therefore not imperative or demanded. The lower court’s refusal was plainly within the range of reasonable case-management decisions and was correct.
5. The appeal was dismissed.

• High Court (Family Division): The appeal from the case-management decision of His Honour Judge Scarratt dated 26 September 2017 was dismissed. Permission to appeal had been granted by Mr Justice Baker on 24 October 2017.