The Impact of Expert Evidence - ND v GD [2021] EWFC 53

The recent case of ND v GD [2021] EWFC 53 provides important authority for family practitioners. The court had to consider several conflicting factors and carry out a ‘careful balancing exercise’. On the one hand, the Court had to take into account the wife’s special health needs (she had been diagnosed with Young Onset Alzheimer’s (YOA) in 2018 shortly after the parties’ separation) and on the other, the fact that the husband had significant non-matrimonial assets. Ultimately, the Court had to determine how these contrasting, but important, factors should be dealt with to achieve a fair outcome.

One of the central aspects of the case was the wife’s diagnosis of YOA and how this impacted upon her needs. YOA is sadly a neurodegenerative condition and her condition made her a vulnerable party such that she was represented by her litigation friend throughout the proceedings. Understandably, expert evidence was required in order for the Court to be able to properly consider a fair outcome and this article will principally consider the case in light of the expert evidence that was obtained. A single joint expert (SJE) occupational therapist, a SJE consultant old age psychiatrist and a SJE financial advisor were instructed in the case.

Background

The parties had a long marriage of 23 years and have two adult children (who at the time of the proceedings were studying at university). Five years prior to separation, in 2013, the husband inherited his late mother’s estate worth £3.6 million at probate. This comprised a residential property portfolio which had largely been kept separate from the parties’ other assets. Comparatively, the matrimonial assets were relatively modest, totalling £750,000 including pensions and of which about £380,000 was the net equity in the family home. At the date of the final hearing the net assets were around £2.6 million (after deduction of a significant IHT liability on the husband’s property portfolio).

One of the key issues to be determined in the case was the wife’s needs and particularly what housing and income funds would be appropriate for her. Expert evidence was required in terms of her life expectancy, specific financial needs and also how her needs could and should be met.

Expert evidence

Life expectancy

The SJE consultant old age psychiatrist provided written and oral evidence, which was described by Peel J as being ‘impressive, clear and reasoned’. The SJE gave evidence that the wife’s life expectancy was between 5 to 10 years – and that given her ‘extremely young age’ she would probably survive longer than the average but probably ‘not as much as 10 years’.

Importantly, Peel J notes in paragraph 23 (vii) of his judgment when referring to the SJE:

“He thought it very reasonable, and desirable, for W to remain at home rather than enter a care setting. In a care home she would be much younger than the other residents, with little in common between them, and her brain would be subject to less stimulation than living in the community. He described it as being "very important" for her to be at home for her quality of life. He drew the important distinction between a residential care home and a nursing care home, the latter becoming only necessary when medical care is required. He told me that the majority of people with dementia are able to live at home for the rest of their lives, albeit becoming increasingly dependent on higher levels of care provision.”

The SJE evidence concerning the importance of the wife’s future home and living arrangements proved to be very significant as evidenced by Peel J’s decision below.

Income costs

Evidence was also given by a SJE financial advisor, who had provided bespoke capitalisation funds factoring in the wife’s anticipated income and care costs over a range of different possible life expectancies.

In his judgment, however, Peel J found these to be of limited use in this case. Peel J acknowledged that the SJE had ‘done exactly what he was asked to do, conscientiously and fairly’ but took the opportunity to remind practitioners that, whilst Duxbury calculations (a formula used by courts to calculate a capital sum in lieu of periodical payments) are a tool and not a rule, “there would have to be a very good reason to go down a different route”.  As part of his evidence, the SJE had highlighted some of the differences between the underlying assumptions he had utilised in his calculations and those factored in to the Duxbury formula.  It was noted that ‘over a short timescale of 5-10 years the different modelling…would not lead to great variance in the computed figures. The longer the term, the greater the divergence’. In this case, the SJE consultant old age psychiatrist had given evidence of his view that the wife’s life expectancy was between 5 to 10 years.

Using Duxbury as a tool was the approach preferred by Peel J, who stated ‘Although I acknowledge that there may be the odd case where an expert is required to carry out a very clearly defined and tailored Duxbury calculation, in the vast run of cases it is inappropriate to reach beyond the Duxbury tables in At A Glance, or the Capitalise programme for a more advanced formula’. This case does therefore highlight the potential need for various different approaches depending on the specific needs at issue.

SJE occupational therapist

The SJE occupational therapist gave a written report setting out costings of the various levels of care which were available to the wife.  From this report Peel J noted:

“A care home setting should only be considered when W is no longer able to live safely at home. If possible, she should continue to live in her current location (X town) as it is quiet and safe, and she has a level of structured routine there which is beneficial to her overall level of independent functioning. He considers that a single storey property would be desirable to avoid a need to move house or carry out adaptations in the future. His view is that the cottage is inappropriate for W's housing longer-term.”

This was also pivotal in the assessment of the wife’s housing needs as set out below.

Decision

Peel J awarded the wife a total lump sum of £950,000 on a clean break basis. This involved applying a significant portion of the husband’s non-matrimonial assets to meet her housing need (assessed at £650,000) and her capitalised income/care costs fund (assessed at £300,000). The court preferred a clean break to avoid the emotional and financial cost of an ongoing financial relationship and acknowledged that having the flexibility of a fund would be beneficial to the wife in meeting her needs as they developed.

Importantly, in relation to the wife’s housing needs Peel J stated at paragraph 65 of his judgement:

“I do not accept the submission on behalf of H that to provide W with a housing fund in excess of the value of the FMH would be to afford her a housing standard beyond that enjoyed during the marriage. In many (perhaps most) cases, it would be ambitious to seek a fund greater than the value of the FMH, but on the very specific facts of this case I do not regard the value of the FMH at £500,000 as a ceiling on W's housing needs”. He went on to add that “W's health requirements take this case beyond the usual arguments about standard of living and appropriateness of housing.”

This case therefore highlights the impact that tailored and specific expert evidence can have when the assessment of and the requirement to meet, very sensitive and specific needs is so crucial to the overall resolution.

This article was first published in the Expert Witness Journal.