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Quick summary: A Daniels v Walker application asks the court for permission to instruct a second expert when you believe a single joint expert’s report is flawed or insufficient. You should consider one if the expert evidence is central to your case and written questions haven’t resolved your concerns. Courts only allow it for genuine, technical reasons—not just disappointment with the original report.
Introduction
The Daniels v Walker [2000] EWCA Civ 508 decision remains a cornerstone in English litigation where expert evidence is central. The case established the circumstances under which a party may seek to instruct a further expert after a single joint expert (SJE) has reported—an issue that arises in both financial remedy and commercial disputes.
In 2025, the principles from Daniels v Walker continue to guide courts and practitioners, especially as the complexity and technicality of litigation increase. Those searching for information on this topic are often parties or advisers facing a disputed SJE report, seeking clarity on their rights and the court’s likely approach.
2. The Legal Framework
At the heart of a Daniels v Walker application is the “not fanciful” threshold. The applicant must show a genuine, arguable reason for challenging the SJE’s report—mere disappointment or tactical advantage is not enough. The court’s discretion is paramount, always framed by the overriding objective (CPR 1.1/FPR 1.1): to deal with cases justly, proportionately, and efficiently.
Key procedural rules include:
CPR 35.1 / FPR 25.4: Restrict expert evidence to what is reasonably required (or, in family cases, “necessary”).
CPR 35.6 / FPR 25.10: Parties may put written questions to experts.
CPR 35.7: The court may direct that evidence on a particular issue is to be given by a single expert.
The Family Procedure Rules mirror the CPR but add further controls, especially in children proceedings, where the “necessity” test is stricter.
3. Procedural Pathway
The typical sequence is as follows:
Parties jointly instruct a single expert.
If dissatisfied, a party should first put written questions to the SJE to clarify or challenge the report.
If concerns remain, the court may require a meeting between the SJE and any proposed new expert to narrow issues.
Only then should a Daniels v Walker application be made, seeking permission to instruct a further expert.
Instructing a “shadow” expert to critique the SJE’s report is common, but their report cannot be adduced without the court’s permission. Timing is critical: late applications risk refusal, especially if they threaten to delay trial or increase costs disproportionately. The court will scrutinise whether the application is a genuine attempt to address a flaw or simply an effort to “shop” for a more favourable opinion.
4. Technical Criteria and Judicial Analysis
When considering a Daniels v Walker application, the court undertakes a nuanced, fact-sensitive analysis. The centrality of the issue is key: is the expert evidence determinative of the outcome, or is it peripheral? Technical disputes—such as those involving forensic accountancy, engineering, or scientific matters—are more likely to justify a second expert than matters of judgment or impression.
Proportionality is always at the forefront: the court weighs the cost and delay of further expert evidence against the importance of the issue and the need for a fair trial. In family and children cases, the scarcity of experts and the “necessity” test (Children and Families Act 2014, s 13) add further stringency, while in commercial litigation, the focus is often on the technical complexity and value at stake.
5. Case Law and Practical Examples
The leading authority, Daniels v Walker, established that a party may seek a second expert for “reasons which are not fanciful,” subject to the court’s discretion. In Bulic v Harwoods & Ors [2012] EWHC 3657 (QB), the court allowed a second expert where the issue was technical and central to the dispute. In Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB), the court emphasised that the test is highly fact-sensitive and discretionary.
In consumer litigation, such as personal injury or defective goods claims, the court is strict about proportionality and will rarely allow a second expert unless the issue is genuinely technical and pivotal. In corporate and financial remedy cases, such as business or asset valuations, courts are more open to a second expert where the SJE’s report is credibly challenged on technical grounds, as seen in R v K (Financial Remedies: Conduct) [2018] EWFC 59 and FW v FH [2019] EWHC 1338 (Fam).
6. Making and Resisting the Application
Applicants must present clear, specific grounds for challenging the SJE’s report—demonstrating that the issue is central, technical, and that written questions or expert meetings have not resolved the concern. Supporting evidence, such as a shadow expert’s critique, can be persuasive but must be handled carefully due to privilege and disclosure risks.
Opponents should focus on showing that the SJE’s report is robust, the challenge is merely a matter of opinion, or that the application is late or tactical. Courts are alert to “expert shopping” and will refuse applications that appear to be motivated by a desire for a more favourable opinion rather than a genuine flaw in the original report.
7. Court’s Approach and Common Pitfalls
Courts scrutinise Daniels v Walker applications with care, balancing the interests of justice, efficiency, and fairness. Common pitfalls for applicants include failing to exhaust written questions to the SJE, making the application too late in proceedings, or presenting arguments that are merely tactical rather than substantive. The court will often refuse permission if the issue is not central, the SJE’s report is not fundamentally flawed, or if allowing a second expert would cause disproportionate delay or cost. Judges are also wary of parties attempting to “expert shop” and will look for genuine, technical reasons for the application.
8. Practical Guidance and Tips
To maximise the prospects of success, applicants should:
Clearly identify the technical flaw or bias in the SJE’s report.
Demonstrate that written questions and expert meetings have not resolved the issue.
Make the application promptly, with supporting evidence.
Address proportionality, explaining why the cost and delay are justified.
Consider alternatives, such as concurrent expert evidence (“hot-tubbing”), if appropriate.
For those resisting an application, focus on the robustness of the SJE’s report, the lack of genuine technical dispute, and any prejudice or delay that would result from allowing a second expert.
9. Conclusion
Daniels v Walker applications remain a vital mechanism for ensuring fairness where expert evidence is disputed. Success depends on technical depth, procedural rigour, and a clear demonstration that justice requires a second expert. Whether in financial remedy, consumer, or corporate litigation, parties must approach these applications with care, clarity, and a focus on the central issues. For litigants and practitioners, understanding the court’s approach and common pitfalls is essential to navigating this complex area of law.
Disclaimer: This article is not legal, technical, financial, or tax advice. Legal outcomes depend on the evidence available and what is submitted to the court.
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