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The statement on the efficient conduct of financial remedy hearings in the Financial Remedies Court below High Court Judge level: A review

Date:25 JAN 2022

In February’s Edition of the Family Law Journal, Claire Athis Schofield and I wrote an article entitled “The Farquhar Committee and the future of the Financial Remedies Court” which set out the findings and recommendations of The Farquhar Committee (‘the Committee’) in respect of the future workings of the Financial Remedies Court (‘FRC’).

In December 2021, HHJ Hess, (Deputy National Lead of the FRC and lead judge of London FRC), indicated national guidance was soon to be published following further consultation on the Committee’s reports. Shortly thereafter, on 12 January 2022, Mostyn J (National Lead of the FRC) and HHJ Hess issued, with the authority of the President, a notice entitled ‘Statement on the Efficient Conduct of Financial Remedy Hearings in the Financial Remedies Court below High Court Judge Level’ (‘the Efficiency Statement’) which now adopts many of the recommendations of the Committee.

As Alexander Chandler of 1KBW sets out in his Blog “New Year, New Rules” the Efficiency Statement “represent[s] the most significant changes to financial remedies procedure for many years.” As with the previous article, the role of this piece is to set out in brief the significant changes which will affect all FRC practitioners, but it should not be considered a substitute for reading the detailed and insightful documents provided by the announcement which include:

  • FRC Efficiency Statement dated 11 January 2022
  • Template ES1: Composite Case Summary
  • Template ES2: Composite asset and income schedule
  • FRC Primary Principles dated 11 January 2022
  • Revised Lead Judge Job Description dated 11 January 2022

Whilst this article will touch on all the documents provided by the announcement, its primary focus is to consider the Efficiency Statement and the changes contained therein.

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THE EFFICIENCY STATEMENT

Allocation

Cases will be allocated based on an allocation questionnaire (See Schedule 3 annexed to the FRC Primary Principles dated 11 January 2022)  to be completed by the applicant and filed with the Court at the time of issuing. The respondent is to be consulted in respect of the allocation questionnaire.

Save for an application for a freezing injunction, FRC cases will not be transferred from the Family Court to the High Court upon allocation. Readers are referred to Schedule 2 of the FRC Primary Principles issued at the same as the Efficiency Statement for further information. 

Remote Hearings

Despite the Committee’s clear recommendations as to those hearings which should proceed remotely and those which should not, Mostyn J and HHJ Hess have chosen not to take forward the recommendations by way of guidance. Instead, the Efficiency Statement has left the decision to Lead Judges of individual FRC zones to issue local guidance. It is easy to foresee the issues this may cause for a busy practitioner who operates over multiple FRC zones. 

First Appointment

Listing
First Appointments (‘FDA’) shall be listed with a time estimate of 45 minutes save for those designated as complex which shall be afforded 60 minutes. Again, this is a slight departure from the Committee’s recommendations which proposed that all FDA’s should be listed for 60 minutes. An exceptionally complex matter may be offered a longer FDA but parties are required to indicate the same on their allocation questionnaire for consideration upon issue. 

Accelerated Paper Procedure
In the event parties can agree directions, the accelerated procedure can be adopted as set out in Schedule 4 annexed to the FRC Primary Principles document. As the schedule sets out, this procedure may only be adopted when:

I. there is a draft agreed Directions Order in the standard form set out in the annex below which is agreed by both parties and signed by them (or on their behalf);
II. the required documents together with the signed draft agreed directions Order have been filed with the court by email at least 14 days prior to the date fixed for the First Appointment hearing; 
III. the email has been sent to a nominated email address (yet to be confirmed); and
IV. a District Judge has approved the draft agreed Directions Order in advance of the hearing.

For the purposes of (II) above, the following documents are required to be filed:

I. each party’s Form E (attachments are not to be included); 
II. each party’s FDA documents in accordance with FPR r9.14(5):
i. a concise statement of issues;
ii. a chronology;
iii. any questionnaire sought to be answered (not exceeding 4 pages). 
III. any other documentation vital to the court’s ability to approve the draft consent order. 

Those who have read the Committee’s recommendations or the earlier article, will note that despite a recommendation that a concise statement of issues would no longer be required for an FDA, for now it remains. This is due to the requirement to change the procedural rules if the document is to be abandoned altogether and the introduction to the Efficiency Statement makes clear the current changes are made without any changes to the Procedural Rules.

Preparing for an FDA
14 days before the FDA the following steps are required:

a) the applicant shall file a jointly obtained market appraisal of the FMH. If the same has not been possible, each party shall obtain their own appraisal and explain why obtaining a joint appraisal was ‘impossible’;
b) each party shall use their best endeavours to:
a. file and serve no more than 3 sets of property particulars for themselves and the other party in respect of housing need; and
b. file jointly obtained indicative material of their respective borrowing capacity. Again, if obtaining this jointly proves impossible each party shall file their own borrowing capacity respectively. 
c. file and serve a questionnaire limited to 4 pages. 

Given the tensions which are often present during FRC proceedings, obtaining joint appraisals of the FMH may prove to be harder than envisaged without an order of the Court, especially when only one party remains resident and/or is the sole legal owner. It is likely to be even more difficult to obtain material indicative of borrowing capacity on a joint basis and the author considers it is likely to continue to be the practice that parties will simply obtain their own borrowing capacity reports. 

The day before the FDA the applicant is required to: 

a) file a composite case summary using the Case Summary Template ES1 annexed to the Efficiency Statement; and
b) file a composite schedule of assets and income based on the parties’ respective Forms E using the Assets and Income Template ES2 annexed to the Efficiency Statement denoting any unagreed entries. 

Readers will note that the Efficiency Statement now requires parties to adopt the Asset and Income Template ES2 unless wholly impractical. For the most part, this will now be the standard asset schedule found in FRC proceedings. As Alexander Chandler set out in his blog  this will “herald the end of the practice whereby each side produces their own bespoke schedule, requiring the judge to mix and match.” 

Peter Newman of 1KBW  and Chair of the FLBA Money and Property Sub-Committee who responded to the FRC Consultation and who led in the creation of the composite asset schedule, set out his observations as to the introduction of the ES2 on Twitter . In Peter’s words:


"…it was clear that the FRC was going to insist on composite documents being lodged

…the trick was coming up with something that satisfied the guidance but just required the parties to put in their own numbers, without having to agree those numbers with the other side"

The focus of the ES2 was simplicity and avoiding the parties having to agree any of the numbers – and laying it all out in a way that enabled individual value differences to be highlighted easily and seen ‘at a glance’.


Noticeably, the ES2 does not have grand totals, or ‘net effect’ calculations built in. This is because, net effect “is a key part of each side’s submissions” and the ES2 should not be seen as a “submissions forum.” 

Using an FDA as an FDR
The FDA may be used as a Financial Dispute Resolution Appointment (‘FDR’) if the parties so wish, and the court should be notified in advance to see if a longer attended hearing can be accommodated. If doing so, parties should ensure they have filed the documents required for the FDR no later than 7 days before, namely:
I. an updated composite case summary using Template ES1;
II. an updated composite schedule of assets and income using, unless wholly impractical, Template ES2 on which any unagreed items must be clearly denoted; and
III. a composite chronology recording in neutral terms the key dates of the parties’ relationship and of the litigation and where any unagreed events are clearly denoted. 

Position Statements
A position statement is the generic term for any form of written submission, including a skeleton argument. 

For an FDA, position statements should not exceed 6 pages, including the attachment of any prepared schedules, although it should be noted this is considered best practice and does not derogate PD 27A para 5.2A.1 which stipulates the limits in respect of a position statement as 3 pages and a skeleton argument as 20 pages. 

Position statements should include a summary of negotiations at each hearing, however, at this stage little to no negotiation may have taken place as responses to questionnaires will not yet have been received. The Efficiency Statement warns of costs consequences for failing to negotiate but this is unlikely to be so at such an early stage in the proceedings.

The position statements should be emailed to the Judge by 11.00am on the working day before the hearing, or in the absence of an allocated Judge, the Court Office. Advocates should exchange position statements no later than 1 hour after filing with the Court.

In-Court FDR

The documents required for an FDR are denoted above (using an FDA as an FDR) and must be filed and served 7 days before the FDR. 

The Efficiency Statement makes clear it is not appropriate for the Court to be confronted with competing chronologies and asset schedules at the FDR or indeed any Final Hearing. As is made abundantly clear at Paragraph 29 of the Efficiency statement, failure to use the standard forms, namely ES1 and ES2, may result in costs sanctions albeit it refers specifically to Final Hearings, however, it is difficult to see why such sanctions would and could not apply to the FDR stage of proceedings.

FDRs will be listed for between 1 hour and 1 ½ hours unless it is determined to be longer at the earlier FDA hearing. It is expected FDRs will be listed in the morning sitting, however it is expected that parties and their representatives will be available for the whole day in an attempt to settle. 

Position Statements
For an FDR, position statements should not exceed 12 pages, including the attachment of any prepared schedules, again it should be noted this is considered best practice and does not derogate PD 27A para 5.2A.1 as above. 

Position statements for each hearing must contain short details of what efforts the parties have made to negotiate openly, reasonably, and responsibly - failure to do so will be met with costs penalties states the Efficiency Statement. 

Position statements should be filed and exchanged in accordance with the rules set out above. 

Private FDR

Should the parties seek a Private FDR, it is anticipated that an order will be made at the FDA permitting the same and shall:
a) identify the FDR evaluator; 
b) dispense with the in-court FDR;
c) state the private FDR may only be adjourned by consent or order of the Court once fixed; and;
d) provide for a mention shortly after the private FDR to be vacated upon the filing and approval of a consent order. 

If the parties are unable to agree the FDR evaluator ahead of the FDA, the parties must bring details of their preferred evaluator, their fees, and dates for appointment. If the parties aren’t agreed, the Court will determine the issue. 

Interim Applications

Interim applications should be made to the allocated Judge unless doing so is impracticable or will cause undue delay. 

Pre-Trial Review (‘PTR’)

Any case with a final hearing listed for 3 days or more should be heard at a PTR about 4 weeks before the final hearing. Subject to availability, the allocated Judge for the final hearing should conduct the PTR. 

Final Hearings

Section 25 and other witness statements
Witness statements are required to comply with the President’s Memorandum issued on 10 November 2021 , be as concise as possible, and should not exceed 15 pages in length which should be considered as the maximum length in accordance with good practice. However, PD 27A para 5.2A.1, provides witness statements should be a maximum of 25 pages including exhibits. 

Preparing for The Final Hearing
A timetable should be prepared for the final hearing and should either be prepared after a failed FDR, for longer cases at a PTR, or at a mention in the case of a failed private FDR. The timetable should include:

a) realistic judicial reading time and judicial judgment writing time;
b) allow no longer than 30 minutes for opening; and
c) not allow for evidence in chief in accordance with FPR r22.6(2).

The President’s Memorandum: Experts in the Family Court (4 October 2021)  will continue to guide the Court as to the admission of expert evidence. In the case of more than one expert on one issue, an experts meeting must take place no later than 28 days before the trial is listed. 

As with an FDR, the applicant must file no later than 7 days before the final hearing;

I. an updated composite case summary using Template ES1;
II. an updated composite schedule of assets and income using, unless wholly impractical, Template ES2 on which any unagreed items must be clearly denoted; and
III. a composite chronology recording in neutral terms the key dates of the parties’ relationship and of the litigation and where any unagreed events are clearly denoted. 

Bundles
Readers may recall that in the earlier article the authors considered the recommendations contained within the Committee’s report, in addition to the General guidance on electronic court bundles’  and, ‘Guidance on e-bundles for use in the Family Court and Family Division’ (‘Supplementary Guidance’)  remained confused. The Efficiency Statement has set out to clarify the position within the FRC. 

Firstly, e-bundles must be prepared in accordance with the Supplementary Guidance issued by the President on 21 December 2021. 

Strict compliance with PD 27A, limiting the bundle to 350 pages applies as much to e-bundles as it does to paper. However, the 350 page limit does not include the composite documents (ES1/ES2), nor does it include the position statements of the parties. 

As ever, only those documents which are to be referred to or are necessary for the court to read should be included, and financial records should not be included unless a specific direction has been obtained most likely at the FDR. 

Any authorities to be relied upon shall be subject to a separate bundle limited to 10 authorities and as agreed by the advocates in accordance with PD 27A. 

Finally, the bundle, with the exception of the position statements, should be filed and served by the applicant no less than 2 days before the final hearing. The position statements and bundle of authorities should be emailed to the Judge by 11.00am on the working day before the hearing, or in the absence of an allocated Judge, the Court Office. Advocates should exchange position statements no later than 1 hour after filing with the Court. 

Position Statements 
For a Final Hearing, position statements should not exceed 15 pages, including the attachment of any prepared schedules, again it should be noted this is considered best practice and does not derogate PD 27A para 5.2A.1 as above. 

Position statements should include a summary of negotiations and be filed and exchanged in accordance with the rules set out above. 

The Final Hearing
The Court will expect the parties to adhere to the timetable agreed and slippage “will not be tolerated unless there are very good reasons.” 

Paragraph 29 of the Efficiency Statement makes clear that advocates are at risk of costs sanctions if, without reasonable excuse, they fail to comply with the composite documents (ES1/ES2), the length and content of position statements and or the time for filing their position statements. However, whilst the Efficiency Statement has proposed good practice for position statement length within the FRC, the number of pages remains higher in respect of a skeleton argument within PD27A than recommended as good practice within the Efficiency Statement and such conflict requires further consideration by the FRC leadership team, or a review by the Family Procedure Rule Committee if sanctions are to be imposed. 

Orders

Orders should be agreed and lodged whilst at Court, or in the case of remote hearing on the same day. In addition, the date for the next listing should be fixed by the parties and the Court and contained within the order, unless ordered otherwise. 

Wellbeing

The Efficiency Statement has attempted to consider the wellbeing of advocates, however the same is subject to judicial resources. Hearings should not take place before 10am and should generally end between 4pm and 4.30pm. Emails to advocates and litigants between 6pm and 8.30am are strongly discouraged and responses should not be expected before 8.30am in the event an email is sent after 6pm. However, such correspondence is deemed acceptable if there is a reasonable prospect of settlement being achieved or issues narrowed. 

Whilst the wellbeing goals are likely to be beneficial to all those working on FRC matters, and mirror many local wellbeing protocols, it is unlikely that they will be anything more than aspirational.

Digitisation

Where the Efficiency Statement requires any party to file any document, uploading the same to the HMCTS online portal in accordance with the deadlines above will be sufficient 

CONCLUSION


These changes take immediate effect and represent a significant shift in the preparation and presentation of cases within the FRC. It is worth noting that further changes are likely afoot as the Efficiency Statement has been released to effect change which does not require any amendment to the Family Procedural Rules. As to the success or otherwise of the changes, time will tell. 

An updated version of this article will appear in March's Family Law within the Journal's new section - Financial Remedies Focus - where expert authors examine financial remedy cases of all levels and from all angles.

 



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