BL-2022-002117 - [2025] EWHC 2794 (Ch)

The truth in the present case has emerged in stages.

The Government Legal Department (“GLD”) raised the issue of Mr Marples’ involvement in the draft Joint Statement with DWF, the Claimants’ solicitors, after the Defendant’s expert (Mr Davidson) brought to GLD’s attention that there was evidence that Mr Marples had been involved in the writing of Mr Cohen’s contributions to the joint statement. DWF wrote an initial letter of response on 15 May 2025, which was followed by two factual witness statements from Mr Cohen and Peter Marples on 4 June 2025 but without any disclosure of the communications between Mr Cohen and Mr Marples. Then (after further correspondence from GLD) the Claimants disclosed certain communications between 17 April and 22 April 2025 on 13 June 2025. The details, which continued to emerge in oral evidence at trial, now appear to be as follows.

Mr Cohen knew Mr Marples through having done previous matrimonial valuation work as a Single Joint Expert instructed by Fair Result, a boutique divorce services business of which Peter and Sarah Marples are directors, and Mr Marples approached him to act as an expert in this case. Mr Cohen had Mr Marples’ contact details, and it seems likely vice versa, allowing direct contact rather than through instructing solicitors. Despite Mr Cohen having been criticised by the High Court in 2014 for having failed to disclose a potential conflict of interest (Rowley v Dunlop [2014] EWHC 1995 (Ch) at paragraph 29), this prior, and potentially future, business connection was not disclosed until 13 June 2025. Even then it was denied that Mr Marples had been involved in Mr Cohen’s instruction on behalf of Fair Result (although this was contradicted by both Mr Cohen and Peter Marples in their oral evidence when they said that this earlier instruction was how Mr Cohen came to have Peter Marples’ mobile phone number). No mention of it was made in the 4 June 2025 witness statements of Mr Cohen or Mr Marples, despite its obvious relevance to the issues arising from Mr Marples’ involvement in the Joint Statement.

On Thursday 17 April 2025 at 12:49pm, Mr Davidson sent a first draft of the Joint Statement to Mr Cohen. Mr Cohen confirmed that he was well aware that the Joint Statement is required to be uninfluenced by the wishes or interests of the instructing parties. Despite this, Mr Cohen chose to send the draft to Mr Marples at 3:09pm, without copying DWF. He then had a telephone discussion with Mr Marples about the substance of the draft. During that call, Mr Cohen says he explained that he would be off work for the whole bank holiday weekend, including Friday 18 April and Monday 21 April, and would be returning to work on Tuesday 22 April. Mr Marples offered to make track changes amendments, to which Mr Cohen agreed. At 3:23pm, Mr Cohen sent the draft again to Mr Marples referring to “our telephone conversation just now”, and saying

“I am of the opinion that the basic structure of the draft is OK (although you might have some thoughts on this)

The basic idea is to narrow the differences between the experts for the benefit of the Court and set out points of agreement wherever relevant as well as highlighting points of disagreement with brief reasoning. However a rehash of what is already in the report is generally not encouraged although a reference to a particular paragraph number is fine.

Any changes we make should be tracked and will then become draft 2.

It is important not to involve solicitors in this part of the process and experts get heavily criticised if it is found out that an expert was influenced by his instructing solicitor as to what he should say”.

This email is consistent with Mr Cohen regarding the drafting of the joint statement as a joint effort with Peter Marples. The last sentence appears to be a disguised instruction to Mr Marples to keep their discussions secret from DWF. DWF were not informed of these communications between Mr Cohen and Peter Marples. To cover up Peter Marples’ involvement with the Joint Statement, Mr Cohen claimed in comments to Mr Davidson in later versions of the draft joint statement to having been given certain information by DWF. That was not true, as eventually conceded on 13 June 2025.

On Saturday 19 April 2025, Mr Marples sent two tracked changes drafts of the Joint Statement to Mr Cohen, under cover of emails timed at 11:32am and 4:26pm. In the latter email, Mr Marples noted that he had “done some extensive work on it”. As Mr Marples accepted in oral evidence, the amendments he made ranged across all of the issues in the case. The extensive work included (i) instructions and suggestions as to things which were “not agreed”, (ii) deletion of entire passages of text, and (iii) the insertion of entire new passages of text expressly presented as Mr Cohen’s opinion (e.g “It is VC’s Opinion that…”). Many of the additional passages inserted as “VC’s opinion” involved strident advocacy on the underlying facts of the case. Mr Marples did not deny, when questioned, that the amendments were entirely one-sided.

During the mid-afternoon of Monday 21 April 2025, Mr Cohen and Mr Marples had an email exchange setting up a call for 11am the next day, when Mr Cohen was returning to work. Mr Cohen observed he would have to delete Peter Marples’ comments on the side once they had discussed them, and before sending the draft to Mr Davidson.

At 11am the next morning, Mr Cohen and Mr Marples had a telephone discussion. After that call, Mr Marples then did further work on the draft Joint Statement, sending another draft to Mr Cohen at 12:53pm. Mr Marples knew that Mr Cohen would need to track the changes in his draft back to Mr Davidson. But he included the following instruction to Mr Cohen:

“On track changes, you will need to ensure my contribution is deleted (I think it is) but if you can ensure it is”.

Mr Marples accepted that he wanted to delete the fact that he had contributed to the changes, but could not explain why, other than that he thought it was “appropriate” for “no particular reason, really”. Mr Cohen, by contrast, accepted what is perfectly obvious, that the reason to delete records of Peter Marples contribution was to keep his involvement secret, because both knew that the joint statement is intended to be uninfluenced by the parties.

The draft Mr Cohen sent out contained around 150 amendments, all of which had been made by Mr Marples. Comparison with the last draft sent by Mr Marples shows that no amendments at all were made by Mr Cohen.

Mr Cohen and Mr Marples had further telephone discussions as the draft Joint Statement evolved, including Mr Marples going through the Company’s bank statements at Mr Cohen’s request. No disclosure has been given in relation to these discussions. There is no suggestion that DWF were involved in or aware of these discussions.

The final version of the Joint Statement signed by the two experts includes numerous passages which have been retained verbatim or almost verbatim from the parts originally written by Mr Marples. Mr Cohen said that the final Joint Statement was the 17th draft and by then he had considered it “very, very carefully and [it] represents my opinion on the joint statement”. However, this did not stand up to much scrutiny.

In relation to Star Capital, for instance, the joint statement at 3.10 records Mr Cohen’s understanding that Star Capital were interested only in making a loan and not in an equity transaction. Mr Cohen could not identify any disclosed documents, which supported his understanding and conceded that he had relied on Mr Marples for that part of the joint report. The assertion that the Star Capital transaction did not proceed because of issues related to the Decision Letter was also derived from Mr Marples, although the source was said at the time to be DWF.

In relation to the views expressed by Mr Cohen as to the saleability of the Company after the Decision Letter, Mr Cohen accepted that aside from the views of Mr Khan, all of the reasons he gave in the Joint Statement for concluding that the company became unsaleable had been written for him by Mr Marples. When tested on the underlying facts, Mr Cohen rapidly retreated to a view that “it's not for me to speculate”.

On 13 June 2025, DWF said that Peter Marples and Mr Cohen had both confirmed that Mr Cohen “did not seek or obtain any similar input from Mr Marples or anyone else on his original report”. The Claimants’ position in their Opening Skeleton was similarly that “this issue is confined to the joint statement, nor Mr Cohen’s report”. The oral evidence at trial showed this to be wrong. Both Mr Marples and Mr Cohen in fact admitted to having at least “two or three” or “some” discussions while the latter was doing his work leading up to his main report dated 13 March 2025, including on topics such as, which transactions might be regarded as comparable. As this emerged only at trial, there is no detail or disclosure in relation to such discussions.