Financial remedy – new procedures

Documents produced last month with the approval of the president of the family court represent the most significant changes to practice in financial remedy work in over 10 years. The documentation must be read in full by all financial remedy practitioners.

Key documents

On 11 January 2022, the following were published:

(a) Statement on the Efficient Conduct of Financial Remedy Hearings. This sets out detailed changes to procedure and exhibits the following which must be used in proceedings:

(i)    A precedent schedule of assets and income; and

(ii)    A precedent case summary template.

(b) A document entitled Primary Principles which exhibits:

(i)    The previously available allocation questionnaire;

(ii)    Previously available details of the accelerated First Appointment procedure and a precedent order.

Key changes to procedure

Allocation

Upon lodging Form A, the applicant must also file the aforementioned allocation questionnaire, unless it is wholly impractical to do so. More significantly, the applicant should seek to consult the respondent for the purposes of completing the questionnaire.

Upon issue, every case will be allocated to an individual judge who will either deal with all hearings, aside from the FDR, or all hearings up to and including the FDR, with another judge being allocated to the final hearing.

First Appointment

Fourteen days before the First Appointment, the following steps ‘should’ (rather than ‘must’) be taken:

(a) The applicant shall file with the court a jointly obtained market appraisal of the family home. If obtaining a joint appraisal has proved to be impossible, each party should file their own market appraisal and be prepared to explain the reason why a joint appraisal could not be obtained.

(b) Each party should use their ‘best endeavours’ to file and serve no more than three sets of property particulars for themselves and the other party and jointly obtained ‘brief indicative material’ as to borrowing capacities. If obtaining a joint statement is impossible, then the parties can obtain their own.

(c) File and serve a questionnaire which should not exceed more than four pages of A4. The court is only likely to approve a questionnaire longer than that in a case where complexity justifies a longer set of questions.

The day before the First Appointment, the applicant ‘must’ file with the court a composite case summary and composite schedule of assets and income using the aforementioned templates. Unlike with the FDR or final hearing, there is no reference to a requirement that these documents must be agreed, nor that an attempt be made to agree them.

FDR

Prior to the FDR the applicant ‘must’ file no later than seven days before the hearing:

(a) Updated composite case summary and composite schedule of assets and income; and

(b) A composite chronology recording the key dates of the relationship and the litigation, clearly denoting any events which are not agreed.

The parties ‘must’ collaborate before the hearing to produce the key documents.  It is unacceptable for the court to be presented at the FDR or a final hearing with competing asset schedules and chronologies.

FDRs would normally be listed with a time estimate of 60-90 minutes, unless the court directs at the First Appointment that a longer or shorter period is appropriate. FDRs should normally be listed in the morning, but the parties and advisers must ensure that they are available for the whole day of the FDR appointment.

Private FDRs

Specific provision is made for the referral to a private FDR. If the court agrees to a referral to a private FDR, the order granting permission shall:

(a) Identify the private FDR judge.

(b) Dispense with the court-based FDR.

(c) State that the private FDR may only be adjourned by agreement or pursuant to an order of the court.

(d) Provide that the matter shall be listed for a mention hearing shortly after the private FDR.

The order will normally be made at the First Appointment. If the identity of the private FDR judge has not been agreed by that point, the parties must bring to the First Appointment details of their preferred private FDR judge, including their fees. If the identity cannot be agreed at the First Appointment, the court will resolve the issue.

Pre-trial review

Every case listed for a final hearing of three or more days ‘should’ be the subject of a PTR, held approximately four weeks before the final hearing. It should be conducted by the trial judge.

Preparation for final hearing

A final hearing template (timetable) must be prepared; the efficiency statement sets out some detail in terms of what is allowed at the final hearing timetable. Before the final hearing, the applicant must update no later than seven days prior the case summary, asset schedule and chronology. The parties ‘must’ collaborate before the final hearing to produce the key documents.

Documentation and bundles

Section 25 statements and any other witness statements ‘should not’ exceed 15 pages in length, although that does not derogate from the 25-page limit in PD27A, which should be regarded as a maximum.

Likewise, the length of position statements is limited, ranging from six pages for the First Appointment up to 15 pages for a final hearing.

Practitioners are reminded again of the strict page limit of court bundles, although the 350-page limit does not include position statements and the composite documents.  A separate bundle of authorities must be prepared and must be agreed between the advocates, although that bundle may contain no more than 10 authorities.

Specific reference is made to the following guidance which has been recently published:

• President’s Memorandum: Experts in the Family Court – 4 October 2021
• President’s Memorandum: Drafting Orders – 10 November 2021
• President’s Memorandum: Witness Statements – 10 November 2021
• General Guidance on PDF Bundles: 29 November 2021 (as modified by the following provision)    
• Guidance on E-Bundles for use in the Family Court or Family Division: 21 December 2021.

Duty to negotiate

Practitioners are reminded of the obligation to negotiate openly and reasonably. Position statements for each hearing must contain short details of what efforts the parties have made to negotiate openly, reasonably and responsibly. Failure to make reasonable attempts to compromise cases in open negotiation ‘will be met by cost penalties’.

Wellbeing

On a positive note, there should not be an expectation that any email sent after 6pm to another practitioner or litigant will be answered before 8.30am the following working day. Sending emails between those times is strongly discouraged. Engaging in email correspondence between those hours is acceptable, however, where there is a reasonable prospect that such correspondence will lead to a settlement being reached or the issues in dispute being significantly reduced.

High Court proceedings and injunctions

The Primary Principles document includes a reminder that financial remedy proceedings must be dealt with in the family court, rather than the High Court. No order will ever be made upon allocation that transfers a case out of the Financial Remedy Court to the High Court, save in the limited circumstance where a freezing ‘mirror’ order application is being made. In terms of freezing order applications generally, the application should be brought under section 37 of the Matrimonial Causes Act 1973 rather than section 37 of the Senior Courts Act 1981. Such application should always be heard in the family court and normally at district judge level.

 

Andrew Newbury is a partner at Hall Brown Family Law