Family Law

Family Procedure (Amendment) (No 5) Rules 2010 come into operation on 31 January 2013. Their main thrust is extensively to re-write FPR 2010 Part 25 (opinion evidence: see later); but they also incorporate a new - well, partly new - FPR 2010 r 1.4(2) (court's duty to manage cases) as follows:

"(2) Active case management includes -
(a) setting timetables or otherwise controlling the progress of the case;
(b) identifying at an early stage -
(i) the issues; and
(ii) who should be a party to the proceedings;
(c) deciding promptly -
(i) which issues need full investigation and hearing and which do not; and
(ii) the procedure to be followed in the case;
(d) deciding the order in which issues are to be resolved;
(e) controlling the use of expert evidence;
(f) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(g) helping the parties to settle the whole or part of the case;
(h) encouraging the parties to co-operate with each other in the conduct of proceedings;
(i) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(j) dealing with as many aspects of the case as it can on the same occasion;
(k) dealing with the case without the parties needing to attend at court;
(l) making use of technology; and
(m) giving directions to ensure that the case proceeds quickly and efficiently."

Hands up those who can see the differences between this and the old r 1.4(2)? The only substantive difference is r 1.4(2)(e), which is already part of Part 25 (old and new): civil courts have had clear power to control opinion evidence, at least since CPR 1998 came into force in April 1999. Two actual differences are represented by r 1.4(2)(g) being promoted to (a) (and the word ‘fixing' being replaced by ‘setting') and 1.4(2)(a) (‘encouraging the parties to co-operate') being heavily demoted to (h). Before this change in the order we might have thought each rule was of equivalent value. We might continue to hope so; but the change in order by the inscrutable FPRC - they say in their ‘explanatory note', uncontroversially, that this change ‘alters the order of matters which is (sic) included placing setting timetables and controlling the progress of the case first on the list'; but we are not told why, nor what is the significance of the change.

Rule 1.4 remains central to the effectiveness of family proceedings as a whole; and timetabling is crucial to proportionality and to ‘a case [proceeding] quickly and efficiently (r 1.4(2)(m)) (a brave attempt at timetabling can be seen of the judge in Re B (A Child) [2012] EWCA (Civ) 1742 (to be considered soon): for reasons which are understandable the Court of Appeal did not agree with his approach). Until case management judges properly time-table cases they cannot blame the parties that their cases run over and that costs spiral. By timetabling, though the rule does not say it, must mean realistic timetabling (ie not 2 days in the PRFD for a case which would take half a day in most other courts).

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Case management is dealt with in Chapters 5, and FPR r 1.4 at 5.07-5.36.   

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.