Efficient Conduct of Final Hearings
18. The group’s views
under this heading in the interim report were that the Statement on the
efficient conduct of financial remedy final hearings allocated to be heard by a
High Court judge whether sitting at the Royal Courts of Justice or elsewhere
dated 5 June 2014 and prepared by Mostyn J should be adopted for
all final hearings in the Family Court of financial remedy applications listed
for three days or more.
19. Having considered
the responses on this subject the group maintains its recommendation.
20. The group wished to
endorse the comments of Mostyn J to the effect that:
(i) the sentence in
the Statement which reads ‘Pursuant to rule 22.6(2) the parties’ section 25
statements will almost invariably stand as their evidence-in-chief’ does not
prevent an individual judge exercising a discretion to permit some
evidence-in-chief if that judge considers it appropriate;
(ii) practitioners and
litigants must scrupulously comply with FPR, PD27A, in particular that, subject
to a specific prior direction from the court at the Pre-Trial Review, the size
of the trial bundle should be limited to a single file containing no more than 350 pages
and note the specific comments on this subject, in the judgment of Mostyn J
in
J v J [2014] EWHC 3654 (Fam); and
(iii) practitioners and
litigants should note the comments on the subject of Single Joint Experts in
the judgment of Mostyn J in
J v J
[2014] EWHC 3654 (Fam) to the effect that directions for expert evidence should
almost invariably be for Single Joint Experts (as opposed to partisan experts)
in the first instance.
Legal Costs in Financial Applications
21. The question of
costs in financial applications was not expressly considered in the interim
report; but the group felt it appropriate to make some comments now in the
light of the judgment of Mostyn J in
J
v J
[2014] EWHC 3654 (Fam).
22. It is clear that
many people feel that the method by which most family lawyers charge (on a time
charge basis) is unpredictable and that the overall levels of costs are high.
The group believes that this in part drives some litigants to act in person
rather than to instruct solicitors.
23. The group has
received representations regarding the re-introduction of the
Calderbank system. The group is opposed
to its reintroduction but does recognise that litigation misconduct needs to be
addressed. Rule 28.3 of the Family Procedure Rules 2010 enables the
Court to make orders for costs where there is litigation misconduct. This rule
needs to be applied more generally. The group would wish to emphasise that
litigants-in-person are not immune from its consequences.
24. Mostyn J in
J v J [2014] EWHC 3654 (Fam) expressly
raised the possibility of fixed price costing and judicial costs capping. The
group noted this development, but also noted that these are complex and
difficult issues for practitioners and that it would not be appropriate to take
the issues further until professional bodies such as Resolution, the Law
Society and the FLBA have been given the opportunity to engage in a discussion
on the subject.
25. The group suggests
that the costs working party of the Family Procedure Rule Committee should be
invited to give consideration to costs issues, including the issues of fixed
price costing and judicial costs capping.
De-linking Financial Remedy applications from the
divorce/dissolution suit
26. The group’s views
under this heading in the initial report were that:
(i) in principle,
financial order applications should be de-linked from divorce /dissolution
proceedings;
(ii) the achievement
of this aim is currently impeded by the current IT arrangements (ie the
FamilyMan case management system), but will be significantly more
straight-forward once a new IT system (which is currently being considered) has
been put in place;
(iii) whilst the IT
problems are being considered there is no reason why the court dealing with the
financial order applications arising out of divorce/dissolution applications
should be the same court as that dealing with the divorce/dissolution itself
provided that full information about the divorce proceedings is provided to the
court by the parties at the First Appointment of the financial order
application;
(iv) some amendments
would be required to the FPR to achieve de-linking (for example the
application/petition for divorce etc should no longer include an application
for financial remedy).
27. Having considered
the responses on this subject the group maintains its recommendations.
Choice of court
28. The group’s view in
the interim report was that there are important policy reasons for permitting
parties in certain circumstances to take advantage of the specialist
environment of the Financial Remedies Unit at the Central Family Court in
London and that the Central Family Court should be its own point of entry for
financial remedy applications, subject to published criteria.
29. The responses were
favourable to this suggestion and the group maintains its recommendation.
Litigants in Person
30. The group has noted
the responses made in relation to the full chapter in the interim report on
litigants-in-person and maintains its recommendations.
McKenzie Friends
31. The group noted in
the interim report that a McKenzie Friends Working Group (MFWG), chaired by Mrs
Justice Asplin, was considering the current Guidance in relation to McKenzie
Friends, a report having been commissioned by the Judicial Executive Board
(JEB).
32. The group was
informed by Cobb J that a draft of the Second Report of the MFWG is
currently under discussion and that this report will specifically address the
issue of paid McKenzie Friends (the first report to the JEB dealt with McKenzie
Friends more generally). As the MFWG has not yet reached the end of its
deliberations on this difficult issue, Cobb J was unable to give the group
any indication of its likely recommendations, but he informed the group that
the current plan is for the MFWG report to be submitted to JEB in the second
week of December 2014.
33. The group wishes to
express the view for consideration by the MFWG that while McKenzie Friends are
felt to provide a useful role in many financial remedy cases, in supporting
litigants, helping with documents, keeping a note in court etc., those
advantages plainly have to be weighed against, for instance, (1) the risks for
the vulnerable litigant in financial remedy proceedings in being charged for
that service by an unregulated / untrained / unqualified individual, (2) the potential
effect on the length and tone of hearings if the McKenzie Friend (especially
the paid McKenzie Friend) is permitted to address the court, (3) any (false)
expectation which the litigant may have about recovering the cost of the paid
McKenzie Friend.
Family Justice Council ‘Matrimonial Needs’ Working Group
34. The group notes
that the ‘Matrimonial Needs Working Group’ chaired by Roberts J hopes and
expects to publish a guide on ‘needs’ targeted at litigants-in-person in the
first half of 2015.
Standard Form Orders in Financial Remedy Proceedings
35. The group in its
interim report recommended the formal adoption under the FPR Part 5 of the
following
standard orders:
(a) Financial Remedies
Directions Omnibus – Shorter Version;
(b) Financial Remedies
Directions Omnibus – Longer Version with index;
(c) Financial Remedies
Final Orders Omnibus with index;
(d) Children Act
Schedule 1 Final Orders Omnibus with index;
(e) Wardrobe of
Enforcement Orders; and
(f) Wardrobe of
Committal Orders.
36. The group has
considered the responses on this subject and maintains its recommendation.
37. The group
recommends that urgent consideration is given to the IT aspects of this
recommendation so that the forms, currently available in Word, are as user
friendly as possible. The group noted the work of this nature done by DJ Geoff
Edwards in relation to the judicial version of the CAP orders and recommends
that he be invited, if willing, to carry out similar work on the financial
orders. The group recommends that he should be given permission to carry out
this work as part of his working itinerary in recognition of the time involved
and the wide importance of the work.
Arbitration in Family Proceedings
38. The group in its
initial report made recommendations in relation to Arbitration in Family
Proceedings to the effect that:
(i) CPR PD62,
paragraph 2 is amended to add the High Court, Family Division to the list;
(ii) a Family Division
equivalent of Form N8 be devised and promulgated; and
(iii) the President
should promulgate the Guidance set out in Annex 12 to the interim report.
39. The group has
considered the responses on this subject and maintains its recommendations.
Financial Remedies Working
Group
Nicholas Mostyn J
Stephen Cobb J
HHJ Philip Waller
DJ Edward Hess
DJ Marshall Phillips
Amy Kisser
Lucy Reed
Maggie Rae
Paul Stewart
Jo Wilkinson
15 December 2014
The suggested amalgamated Form E is in the Annex referred to at para 6(iv) of this report can be downloaded here. The interim report produced on 31 July 2015 is available here.
