Some readers of this blog will have received
my e-mail, sent in my capacity as Chair of Resolution’s London Regional Group,
about the operation of the “Financial Remedies Unit” (“FRU”) at the Principal
Registry – very soon to be re-designated the Central Family Court (“CFC”). Those who did not can read the detail of the
changes here. The corresponding FRU standard directions
order template is available here.
When reviewing the proposals, some of them struck
me (as an old Registry hand) as faintly familiar. Others seemed slightly optimistic. I share some of my ponderings with you here…
1. Having an allocated Judge
A terrific idea, but
hardly a revolutionary one. A long time
ago, in a galaxy far, far away (that is, in the Principal Registry until around
1996), when an application for a financial remedy (or “ancillary relief” as we
called it in the olden days) was issued, a directions appointment would be
fixed before a named District Judge.
Thereafter, that Judge would, so far as possible, hear the case from
beginning to end. Since this was before
the invention of the “Pilot Scheme” (when, by the way, did we lose the Pilot,
but not the Scheme?) and therefore of the FDR appointment, there were no issues
of privilege with which to grapple. In
our Brave New World, we will have not one, but two allocated District Judges –
the first up to and including the FDR, and the second thereafter through to
disposal of the trial.
I
note as an aside that the guidance we have suggests that this is to be the case
“in general” – perhaps they too have doubts about how this can be achieved with
an ever-decreasing pool of Judges?
2. Having a pro forma pick ‘n’ mix
directions order
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A good idea, but is
it a useful one? Again, back in the day,
most Courts had their own version of a pro forma directions order.
If
my recollection serves:
(a) they
were very much shorter and simpler than the eight-page Mostyn J / Munby P
house-rules compliant behemoth cum chimera prepared by District Judge Edward
Hess (for which we thank him), and
(b) they were
very rarely used as anything other than an aide memoire (at least at the Principal
Registry) as (even then) one-size-did-not-fit-all. It didn’t then and it doesn’t now.
Why,
in a world in which there will assuredly be far more litigants-in-person - few
of whom we must assume will have had the advantage of either the education or
training enjoyed by Mostyn J or Munby P (or even, dare I say it, the average
‘umble solicitor) - is the management / housekeeping / what-happens-next stage
of the process made to appear so very complicated and intimidating?
I
say nothing of how the average (or indeed any) LiP is to access or make head or
tail of the pro forma directions with which they are presumably intended to arm
themselves and amend as appropriate before appearing before the Court. The intention may be it will be made
available on the FRU website – time will tell.
I
should have expected – based on nothing more concrete than my own experience –
that the approach to case management might be more informed by the case with
which the court is dealing. The
arithmetic goes something like this:
One house, one income, two parties to a
marriage, and probably some children to be looked after = simple directions.
Five houses (three abroad, two owned by
a trust and one by a BVI company), one hedge fund (loss making, natch), no
“income”, huge alleged (and disputed) tax liabilities, an offshore trust and a
pension fund and lifestyle issues (and probably some children to be looked
after) = complicated directions.
Or am I missing
something?
3. The clerk in Court is responsible for
drawing up the Order
Hmmmm…. Not quite sure how this is new or, if it is,
when their responsibility for doing under existing practice actually ceased.
4. Directions can be agreed between the
parties to avoid an unnecessary attendance at Court (the accelerated FDA
procedure).
Definitely one for
the lawyers, this one.
Most
sensible solicitors will have sought to agree directions, where possible, in
advancing of rocking up to court. Whilst
I understand what the rules are attempting to achieve (active judicial case
management with an eye to costs overall), when did it become the case that only
a District Judge was deemed capable of determining appropriate and
proportionate case management directions, requiring the parties and their
solicitors and (where appropriate, or even where not appropriate) their Counsel
before them in Court to do so? What greater waste of costs could there be
where matters had already been agreed?
So,
good! A way to address this issue where
there is agreement as to appropriate case management.
The
new accelerated procedure requires the submission of directions, agreed in
every respect. An exception to this may be in relation to a
discreet questionnaire point – they will not otherwise, we are told, approve agreed
directions in general terms that require replies to a questionnaire subject to
a “save for just exception” provision.
But,
the new accelerated procedure requires the submissions of agreed directions so far
in advance of the scheduled FDA – at least fourteen days, see paragraph 2(ii) -
that I wonder how often it will be possible to fulfil its criteria. I am informed that although the FRU has been
in operation since January (seriously, was anybody really aware of this?), no
applications have yet been received under the accelerated procedure.
As a
point of interest, in discussions about the FRU’s operation it was suggested to
me by representatives from the judiciary and Bar (in my capacity as the only
person present at the time who had ever actually prepared a Form E) that “if only solicitors didn’t take so long to
produce Forms E, there would be no issue with early agreements being reached”. Obviously, it couldn’t be our clients who are
responsible for that delay, or compliance with the rules, or pension providers
taking an age to produce documents, or likewise banks in providing copy
statements or……
So
it must be the "other profession". QED.
5. FDAs and FDRs will “never” be listed in
the floating list
6. MPS hearings to be listed for an hour
within 28 days
Hurrah! Let’s hope they’re not floating (in the
“unallocated case list”) on the day - they are not included in “never to be in
the floating list” commitment made in respect of FDAs and FDRs.
7. Targets (NOT deadlines) for the listing
of FDRs and hearings
Hurrah again! Slightly concerning, however, that all of
these hearings are supposedly to be divvied up between only seven dedicated FRU
Judges and some deputies. Maybe they
will sit outside their core hours, extend the court day or sit on
weekends? Hmmm again.
8. Forward-looking costs budgets at FDA
and FDR
Hurrah (I think), but
does a Judge really need these to repeat their time-honoured and well-rehearsed
homilies about the parties’ hard-earned dosh only going to the lawyers if they
don’t agree? Judges seem increasingly to
me to have such short memories about lawyers’ charging practises, but I
digress...
Having asked the
question specifically, I am assured that these will not be “Jackson-type”
budgets for which there are very severe consequences under the CPR 1998 if they
are inaccurate or even late. But for how
long will that remain the case? Other
than giving the parties something to think about and / or the lawyers a
bollocking, I wonder what purpose these are actually intended to serve?
I
presume that this “rule” will only apply in those cases where at least one of
the parties is legally represented, but who knows?
Random thoughts, as I said. Don’t start me on the whole mandatory orders
thing!
Another random thought for those of you
practising in “high net worth” work (this used to be called “big money” –
another rebrand): there appears to be
little expectation that cases might require to be heard by a High Court Judge,
and therefore limited facility for the transfer of proceedings after
issue. Paragraph 6 of the FRU Procedure
requires parties to make any transfer application at the FDA stage.
The alternative proposed is compliance with
the President’s Guidance of 1 December 2009.
I have not been able to find that guidance on-line or in the current
version of the Red Book, but it is reproduced in “At A Glance” - not a resource
I expect many LiPs to have about their person.
The Guidance likewise supposes most transfers will be considered at FDA
stage although paragraph 4 contemplates transfers to a High Court judge prior
to FDA, but only on submission of a certificate completed by “both Counsel or, if Counsel are not
instructed, solicitor(s) for the parties” stating concisely why the case is
suitable for a High Court Judge. That
certificate must be filed at least twenty-one days before the date fixed for
the FDA, and will be considered by a High Court Judge who will determine
whether, prima facie, the matter is suitable for hearing at that level.
The Guidance is well-hidden from those
without specialist resources. Although I
wonder how many LiPs will be exercised about the eminence of the Judge before
whom they are to appear, they will struggle to find it, and, when they do, are
unable under its terms to self-certify. Why
this transfer process has not been reviewed as part of the FRU’s operation is
beyond me. I imagine that we will
continue to seek a transfer at the FDA, but that this is something which will
always require attendance at the FDA. I
note that it is not a direction included in the standard draft order, so we
must presume that very few such applications are expected.
If anyone has any suggestions about how
better to manage commencing suitable cases before High Court Judges, answers on
a postcard please.
One very good thing is that the User Group
convened by HHJ Martin O’Dwyer to consider the operation of the FRU is intended
to continue to meet periodically, so there is a conduit for our experiences of
the scheme in operation to be put to those responsible for administering
it. Feel free to send these thoughts to
me by e-mail (mheathcote@bishopandsewell.co.uk)
and / or via the London Region Resolution Committee via our micro-site, or and
or by Twitter (@ResLondon). I will
ensure that those experiences – good, bad or indifferent – are conveyed to the
powers-that-be.
We live in interesting times indeed.
Yours, Chairman Ag
