For solicitors
Joint instruction, and the single joint expert, on mortgage capacity
Two different things are routinely called the same thing. A jointly instructed capacity report and a single joint expert appointment under FPR 25.11 are not the same document, do not carry the same duties, and do not cost the same.
By Jonathon Mark Turner CeMAP, Mortgage Capacity Specialist ·
The distinction, stated plainly
| Jointly instructed capacity report | Single joint expert under FPR 25.11 |
|---|---|
| Part of the First Appointment material. The court expects borrowing-capacity material to be jointly obtained where possible. | Expert evidence. Requires the court’s permission, on the test that the evidence is necessary to resolve the proceedings. |
| No permission needed. No application. No draft order. | Permission sought as soon as possible, and no later than the First Appointment in financial remedy proceedings. |
| Instructed by agreement between the firms, usually on a joint letter. | Instructions in a jointly agreed letter unless the court directs otherwise; the court may resolve a dispute about them. |
| A professional opinion. Prepared impartially, but not subject to the Part 25 duty regime. | Overriding duty to the court, which takes precedence over any duty to the party instructing or paying. Report must comply with PD25B. |
| Published fee. | Fee agreed in writing for the scope, reflecting the declarations, the range-of-opinion analysis and the exposure to written questions and attendance. |
Most financial remedy cases need the first. Some need the second. The error that costs money is instructing the second when the first would have done, and the error that costs credibility is filing the first while describing it as the second.
Why the court prefers joint instruction
Two capacity reports on the same two parties, obtained separately, will frequently disagree — not because either is wrong, but because they were given different assumptions. The court then has a dispute about the evidence rather than evidence about the dispute. A single jointly obtained document removes that whole layer, and does so for one fee rather than two.
It also removes the suspicion of shopping. A report obtained by one side alone attracts the question of whether the instructions were framed to produce the answer that side wanted. A joint letter of instruction, with agreed questions and agreed assumptions, answers it in advance.
How to propose it
Write to the other side early, and propose the following in one letter:
- the identity of the proposed reporter, with their qualification;
- the fee, fixed and quoted in writing, and how it is to be apportioned — most commonly equally;
- the questions the report is to answer;
- the assumptions to be applied where a fact is in dispute, or the alternatives to be run if the parties cannot agree one set;
- the evidence each party will supply, and by when;
- the date by which the report is required.
If the other side does not engage, keep the correspondence. It is the answer to the question the court will ask about why the material was not jointly obtained.
How a joint instruction runs in practice
- Either firm can open it. We write to both firms with the scope, the fixed fee and the evidence request, so neither side is working from different information.
- Instructions. We accept a joint letter of instruction. Where the parties cannot agree the wording, we will report on the questions each firm has put and record on the face of the report that the instructions were not agreed.
- Evidence. Requested from both parties, with both firms told when the evidence is complete and the analysis has started.
- Draft. Issued to both firms at the same time. Factual corrections are taken from both. Neither party gets a preview and neither party gets a private conversation about the conclusion.
- Final report. Issued to both firms simultaneously. We can invoice one firm or split the invoice; apportionment between the parties is a matter for them.
If we are proposed as a single joint expert
Tell us before the application is made. The court will want to see, and we will confirm in writing:
- the field of expertise and our qualification and experience in it;
- that we have no conflict of interest in the case;
- our fee for the scope, fixed and in writing;
- the date by which the report can be filed;
- our availability for any hearing at which we may be required to attend.
That material also lets the court fix a costs cap on the expert evidence before the instruction, which is far better for everyone than a challenge to the fee afterwards.
Where we are appointed, the report is prepared to Practice Direction 25B, including the statement of truth, the declaration of no conflict, the summary of the range of opinion, and the express statement that our duty to the court overrides any duty to the parties instructing or paying us.
Written questions
Where a report has been filed as expert evidence, the parties may put written questions for the purpose of clarification, once, within a short window after service. Clarifying a point we have already reasoned is part of standing behind the report and is not charged for. Where questions go beyond that — asking for a fresh set of assumptions to be modelled, for instance — we say so and agree the position in writing before doing the work, so nobody is negotiating a rate at the moment they most need an answer.
Nothing on this page is legal advice. Whether permission is required, and what the court will expect in a particular case, is a matter for you and the court.