In a case recently decided by the Federal Circuit Court, the parties had appointed a single expert witness to value a property.  The expert provided a valuation at $425,000, but they reduced that sum by $160,000 because of problems with the property.

The wife disputed that valuation and, unknown to the husband, engaged another expert, called a “shadow” expert, to value the property.  That was done and the figure was $430,000, but without making any of the $160,000 worth of deductions that the single expert had made.

The husband asked that the shadow expert’s valuation not be allowed as evidence at the trial for the following reasons:

  1. The wife had not instructed her lawyer to write to the first valuer to put questions about their valuation.  Instead, she had the shadow valuer prepare a valuation for the purposes of the Court case.
  2. The wife’s instructions to the shadow expert included information which was not agreed on by the husband and the wife.
  3. The wife’s instructions to the shadow expert were unbalanced and one-sided in the wife’s favour.
  4. The husband had allowed the shadow expert to go to the property to prepare the valuation on the understanding that the wife would be using the valuation for negotiations, but not at the Court hearing.
  5. What the wife should have done was to use the shadow valuation to put questions to the original valuer.  That was not what the wife did, as she wanted to have the shadow expert attend Court on her behalf, up against the single expert valuer who had been jointly chosen by the parties. 

The Judge said:

If the wife wishes to challenge Valuer A by using information provided to her by Valuer B then she should pose specific questions to Valuer A.  In the event the wife wished to call Valuer B as an adversarial expert, I consider that the instructions they have already provided are so tainted as to render such a report of lesser if not no weight”.