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New Year, New Rules

All financial remedy practitioners should be aware of a raft of important new guidance, issued by Mostyn J and HHJ Hess, as Lead Judges of the Financial Remedy Court, with the approval of the President of the Family Division (see link):

  • An amended Statement on the Efficient Conduct of Financial Remedy Hearings, which applies to cases heard below High Court Judge level (‘Efficiency Statement’ (‘ES’). This attaches two new templates of ‘Composite Documents’, to be completed before every hearing: a composite Case Summary (‘ES1’) and composite Schedule of Assets and Income (‘ES2’);
  • A new ‘Primary Principles’ (‘PP’) document, which attaches several exhibits including an Allocation Questionnaire (Sch 3), summary of the Accelerated First Appointment Procedure (Sch 4)
  • A revised document describing the Overall Structure of the Financial Remedies Court and the role and function of the Lead Judge

These give effect to the recommendations of the Farquhar Committee and represent the most significant (and controversial) changes to financial remedies procedure for many years. In particular, they herald the end of the practice whereby each side produces their own bespoke schedule, requiring the judge to mix and match. A link to the above will be included once this is available. Presently, these documents are being ‘cascaded’ by email.

All of these documents warrant reading in detail. This blog summarises the main points to note, based on an initial reading:

IssueGuidanceLocation
Definition“Financial Remedies”PP, Sch 1 (‘FRC1’)
Allocation questionnaireTo be completed in every case ‘unless wholly impractical’ES § 4 Allocation guidelines at PP, Sch 2 (‘FRC 2’
 Form of allocation questionnairePP, Sch 3 (‘FRC 3’)
Judicial continuityEvery case will be allocated to an individual judge (‘subject to available judicial resources’) save for FDRES § 5
 Interim hearings must be listed before allocated judge unless impractical or cause undue delayES § 16
Remote hearingsLead judges of FRC zones to issue local guidanceES § 6

First Appointment

ListingList for 45 mins or 60 mins if complex.
Where ‘exceptionally complex’, indicate on allocations questionnaire
ES § 7
Accelerated ProcedureParties can use accelerated paper-based procedureES § 8 PP, Sch 4 (‘FRC 4’) which contains a precedent
 Court may fix final hearing date at First AppointmentES § 12
Using First Appointment as FDRCourt should be notified in advanceES § 9
New Obligations for First Appointment (14 days in advance)Parties “should” (if First Appointment) and “must” (if FDR) fileES §9
 Joint valuation of family home, or each party to provide valuation of home if joint valuation not possible (with explanation)ES § 10(a)
 Parties to use best endeavour to file and serve no more than 3 sets of property particulars, brief indicative material as to respective borrowing capacitiesES § 10(b)
 Questionnaire which should normally not exceed four pages of A4 (using 12 point font with 1/5 spacing)ES § 10(c)
New Obligations for First Appointment (day before)Applicant must file (a) composite case summary, (b) composite schedule of assets using templatesES § 11 ES Template ES1 ES Template ES2
Listing for private FDRWhere a private FDR is taking place, order should identify ‘private FDR evaluator’, state private FDR may only be adjourned by agreement or order, provide listing for a mention. Identity of ‘evaluator’ must be determined at First AppointmentES § 15

FDR

New Obligations for FDRApplicant “must” file updated (a) composite case summary, (b) composite schedule of assets, (c) chronology. “It is unacceptable for the court to be presented at the FDR or final hearing with competing asset schedules and chronologies”ES §13 ES Template ES1 ES Template ES2
ListingNormally ‘listed 1 to 1 1.2 hoursES § 14
 Normally listed in morning but advisers must be available all dayES § 14

Final Hearings

PTREvery case with listing of 3 days or over should be subject to PTR 4 weeks before final hearingES § 17
TimetableTemplate must be prepared which allows reasonable and realistic time for judicial reading, which will not normally allow time for examination in chiefES § 19
 Slippage from timetable will not be tolerated without very good reasonsES § 28
S.25 statementsMust comply with President’s Memorandum (10.11.21)ES § 22
Memorandum of 10.11.12
New Obligations for final hearingApplicant “must” file updated (a) composite case summary, (b) composite schedule of assets, (c) chronology, 7 days before FHES § 21 ES Template ES1 ES Template ES2

Bundles (every case)

ContentsStrict compliance with PD27AES § 23(a)
Page Limit350 page limit does not include position statements or composite documentsES § 23(b)
E-BundlesE-bundles must be prepared in accordance with General Guidance 29.11.21 as modified by Family Court guidance 21.12.21ES § 23(e) General Guidance 29.11.21
Guidance 21.12.21

Position Statements

LengthShould be concise and not exceed:
– 6 pages for First Appointment
– 8 pages for interim applications
– 12 pages for FDR
– 15 pages for final hearing
ES § 24(a), as best practice, subject to maximum limits at PD27A § 5.2A.1
Application to exceedApplication should be made to the court to exceed these limitsES § 27
Font etc.Must be in 12 point font, 1.5 line spacing, numbered paragraphs, not include extensive quotation from documents etc.ES § 24
TimingLodged by 11am on day before hearingES § 26

Other

Duty to negotiateCourt to be informed at all hearings of parties compliance with duty to negotiate openly and reasonably. Position statements for each hearing must contain short details of open negotiationsES § 31
Drafting ordersStandard orders to be used
Normally to be drafted on day of hearing, otherwise within two days
Recitals should not summarise what happened but only essential background matters not part of the body of the order. “The parties respective positions before or during the course of the hearing should not be set out in recitals
ES § 33, 32(c)-(e)
Hearing datesNormally fixed at courtES § 34

Alexander Chandler

11 January 2022

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