Buehrlen v Buehrlen [2017] EWHC 3643 (Fam)


  • H and W married in 1997. Decree absolute was pronounced in 2017.
  • At the First Directions Appointment, the recital to the order stated that both parties reserved their right to make an application for expert evidence in relation to (a) medical conditions, (b) the value of H’s business, and (c) the value of H’s trust properties. The order was silent as to expert evidence in relation to either parties’ earning capacity.
  • After the FDR, H made an application for the instruction of an employment expert, to provide a report on W’s earning capacity. W agreed to the instruction of a single joint expert.
  • DJ Hudd refused to approve the Consent Order on the basis that expert evidence from an employment expert was not necessary. The application was instead listed for a hearing.
  • By the time of the hearing, W’s position had changed so that she opposed the instruction of a single joint expert.
  • The judge dismissed H’s application. Applying Re TG [2013] EWCA (Civ) 5 and Re HL [2013] EWCA (Civ) 655, he found that the earning capacity evidence failed to meet the necessity requirement of FPR r25.4(3). H appealed.

Held, dismissing the appeal:

  • The test of necessity is the test for obtaining expert evidence for every type of family law litigation, not just those relating to children.
  • H’s attempt to distinguish the case from the authorities of Re TG and Re HL on the grounds that they were children’s cases and involved proposed expert evidence of ‘dubious validity’ was rejected. The authorities provided the definitions of ‘necessity’, and as such, were relevant.
  • Judges in financial remedies proceedings routinely assess earning capacity, and 'in the vast majority of cases', expert evidence would not assist in this task. To routinely include evidence from employment experts would result in a greater number of contested hearings, as well as increasing the length of proceedings and costs.