An increasing trend towards the appointment of a single joint forensic accounting expert (SJE) for relationship property matters has emerged in New Zealand, compared to the traditional approach where each party appoints their own forensic accounting expert.
The latest New Zealand Relationship Property Survey undertaken by Grant Thornton New Zealand and the New Zealand Law Society, revealed an 11% increase in the number of lawyers who had used a SJE in the last two years. In 2017, only 27% of practitioners had used this approach, jumping to 38% in 2021.
Consistent with this increase, most practitioners (61%) were in favour of a formal regime requiring the appointment of a SJE in the first instance. If this occurs, New Zealand practice would fall into line with that in the UK and Australia which both have formal rules governing expert appointment including SJE appointments in most cases.
Only 21% prefer to continue to separately appoint experts, possibly reflecting higher value and more complex cases where the use of more than one expert might be more beneficial.
I have been engaged as a SJE on valuation and other financial matters in both New Zealand and the UK and understand the increasing move to a SJE approach. While the SJE approach is not without its risks, it often delivers significant time and cost savings to the parties. For example:
- often only one expert report is needed under the SJE approach, instead of several reports if two experts are required,
- a decrease in the volume of reporting reduces the length of time the expert needs to be involved in the process, and
- faster and easier access to all the information required to complete the work because the expert is appointed by both parties.
The SJE approach also tends to be less adversarial when only one expert is involved. This is not only in terms of relations between the parties but between lawyers – it may help to address a further survey finding that 40% of lawyers ranked dealing with unrealistic, aggressive or inexperienced opposing counsel in their top three problematic issues faced in relationship property cases.
The time and cost benefits of a SJE approach are attractive, but there are some issues to consider. It can be less suited to complex or novel situations, where the court might prefer to see a range of views discussed and debated by more than one expert.
High value assignments also tend to be less suited to the appointment of a SJE as, due to the sums involved, shadow experts may be instructed to provide a second opinion. Any possible cost savings can disappear very quickly once additional experts are engaged.
The use of a SJE also presents different challenges to legal advisors who typically need to work more closely with their opposing counsel, while continuing to protect their own clients’ interests. This includes appointment terms, information disclosures and communications.
Or some parties may just prefer to have their own expert.
An experienced expert can assist to assess the issues and decide on the right approach.