In ‘Outliers: The Story of Success’, Malcolm Gladwell advanced the concept of the 10,000 Hour Rule, whereby the key to achieving expertise is relentless practice. The examples given ranged from Bill Gates’ access to computers as a youth and the Beatles performing 1,200 times from 1960 to 1964.
This might explain why criminal advocates are so much better at trial advocacy than their civil counterparts. A criminal advocate who spends 20 weeks a year in court on trials will have clocked up 10,000 hours after roughly twenty years in practice. Few civil practitioners will get close to that mark, and for a financial remedies specialist it is an almost impossible goal. For a range of good reasons, most FR cases settle: litigation is expensive, risky, and the FDR/ private FDR has helped resolve all but the most intractable of disputes.
While there are some brilliant minds at the family bar, the standard of advocacy at financial remedies final hearings is mixed. Possibly because family lawyers are rusty when it comes to the craft of preparing for trial; maybe because clients want to pursue questionable points (‘he who pays the piper, calls the tune’). Cross-examination is where many good and experienced practitioners fall short. If good cross-examination is measured and devastating, like a fencer’s blade; bad cross can be unfocused and backfire, like the fishing scene in Withnail & I, where Withnail wades ankle-deep in a river, blasting the water with a shotgun.
This article is intended as aide memoire of the various procedural, professional and legal rules that should be borne in mind at a final hearing. It is not intended as a counsel of perfection, but rather a reminder of certain things which we (unlike our criminal brethren) do not encounter on a weekly basis. All of the rules are hyperlinked. While some are of general application, others relate specifically to FR hearings below High Court level, and the professional conduct rules relate to barristers and not solicitors:
| PHASE | RULE | EFFECT |
| (1) PREPARING FOR FINAL HEARING | ||
| Final hearing template | Below High Court level: FRC Efficiency Statement 11 Jan 2022 (“FRC Efficiency Statement”) | Obligatory (‘must be prepared’) (¶18). Should allow ‘a reasonable and realistic time’ for judicial reading, judgment writing (¶19a); ‘Not normally’ allowing more than 30 mins for opening, or any time at all for examination in chief (¶19b, c) Slippage from timetable ‘…will not be tolerated unless there are very good reasons’ (¶28) |
| At High Court level, High Court Efficiency Statement dated 1 February 2016 (‘High Court Efficiency Statement’) | Broadly similar provisions to FRC Efficiency Statement at ¶ 9, 10, 17; Not normally more than 1 hour for opening (¶ 10b), or any time for examination in chief unless expressly authorised at pre-trial review (¶10c) | |
| Bundle | PD27A ¶4.1–¶5.3 | Requirements analysed in Re L (a child) [2015] EWFC 15 (Munby P). Also see: FRC Efficiency Statement ¶ 23 High Court Efficiency Statement ¶14 |
| Format of e-bundle | President’s Guidance 21 December 2021 General Guidance on Electronic Bundles, 29 November 2021 | Sequential singular pagination of entire bundle corresponding to PDF numbering (¶4c) |
| Update ES1, ES2 and neutral chronology | FRC Efficiency Statement ¶21 | Filed by applicant 7 days before final hearing. Chronology should record in neutral terms ‘… any unagreed events…clearly denoted’ (¶ 21a, b, c) Parties ‘must collaborate… to produce these key documents’ |
| Avoid late production of auditing spreadsheets | WC v HC (Financial Remedies: Agreements) [2022] EWFC 22 | [1(v)] ‘… I deprecate the practice, which appears to be prevalent, of lawyers producing at the eleventh hour spreadsheet analysis of expenditure during the marriage… If an exercise such as this is to be relied upon, it must be provided well in advance… before the PTR.’ (Peel J) |
| Authorities Bundle | PD27A ¶ 4.3A.1; FRC Efficiency Statement ¶23d; High Court Efficiency Statement ¶14 | Separate bundle of authorities ‘must’ be agreed, and ‘shall’1 not contain more than 10 authorities |
| Witness familiarisation | BSB Handbook Code of Conduct (‘Code of Conduct’) rC9.4. | ‘…you must not rehearse, practice with or coach a witness…’ |
| R v Momodou [2005] EWCA Crim 177 | Distinction drawn between coaching (not permitted) and familiarisation; prudent to assume this also applies in family cases: Bar Council Guidance on Witness Preparation (June 2023) ¶ 35 | |
| (2) POSITION STATEMENTS | ||
| Length | PD27A ¶ 5.2A.1 FRC Efficiency Statement ¶ 24(a)(iv) High Court Efficiency Statement ¶ 15(a)(iii) | Maximum 20 pages for ‘skeleton argument’ unless court directs otherwise (5.2A.1) ‘Best practice’ in FR cases is a ‘position statement’2 which is ‘concise’ and should not exceed 15 pages below High Court level or 20 pages at High Court level; Where longer position statements are filed, the court will expect an explanation (FRC Efficiency Statement ¶27) |
| Formatting | FRC Efficiency Statement ¶ 24 (b) High Court Efficiency Statement ¶15 (b) | 12 point font, 1.5 line spacing, set out in numbered paragraphs |
| Guidance on content | FRC Efficiency Statement ¶ 24 (c–g), 31 High Court Efficiency Statement ¶15 (c–g) | Must define and confine areas of controversy, be cross referenced to the bundle and should not include extensive quotations from documents. ‘Short details’ of open negotiations should be included (¶ 31) |
| Allegation of fraud | Code of Conduct, rC9.2c Crowther v Crowther [2020] EWHC 3555 (Fam) | Barristers must not allege fraud unless clear instructions and credible material which establishes an arguable case. A party who unsuccessfully pleads fraud can expect to pay indemnity costs. (Lieven J ¶60) |
| (3) CITATION OF CASE LAW | ||
| No cherry picking | Code of Conduct, rC3.4 | Barristers must ensure the court has all relevant decisions and legislative provisions ‘…Your duty under Rule rC3.4 includes drawing to the attention of the court any decision or provision which may be adverse to the interests of your client. It is particularly important where you are appearing against a litigant who is not legally represented’ (gC5) Barristers must not draft any document containing ‘…any contention which you do not consider to be properly arguable’ (rC9.2b) |
| Which report to cite? | Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194 Practice Direction: Citation of Authority [2012] 1 WLR 780) | Where a neutral citation exists (post-11.1.01), this should generally be given for every case cited (¶ 2.3); Hierarchy of reports to cite: (i) Official Law Reports (¶6), then (ii) WLR or All ER (¶7), then (iii) other specialist reports (¶8) such as the FLR |
| What case can be cited? | Lord Chief Justice’s Practice Direction on Citation of Authority (9 April 2001) ¶ 6 | Judgments from permission to appeal, ex parte and hearings below High Court level ‘may not… be cited’ unless they clearly purport to establish a new principle or extend the law, ¶6.1–62 |
| How to cite a case | FRC Efficiency Statement ¶ 24 High Court Efficiency Statement ¶15 | ‘Where it is necessary to refer to an authority… first state the proposition of law… then identify the parts of the authority that support the proposition, but without extensive quotation from it’ |
| (4) OPENING SPEECH | ||
| Duration etc. | FRC Efficiency Statement ¶ 19b High Court Efficiency Statement ¶10b | Not normally longer than 30 minutes (below HCJ) or 1 hour (HCJ). However, an opening speech may not be required at all where comprehensive position statements. |
| (5) EXAMINATION-IN-CHIEF | ||
| General rule | FPR 22.6(2) | A witness statement stands as evidence in chief unless the court directs otherwise. Examination in chief should not be used to repeat contents of a witness statement |
| Permission to amplify | FPR 22.6(3), (4) | With the permission of the court (which should only be given where there is good reason) a witness may (a) amplify his statement, (b) give evidence in relation to new matters |
| Failure to call a witness | Wisnieswski v Central Manchester Health Authority [1998] EWCA Civ 596 | Court may be entitled to draw adverse inferences from the absence and/or silence of a witness who might be expected to have material evidence to give on an issue in the action (Brooks LJ). Checklist of relevant factors: see Magdeev v Tsvetkov [2020] EWHC 887 (Comm), Cockerill J at [154] |
| R v B [2017] EWFC 33 ¶87 | [87] ‘There must, however, be some evidence, however weak, adduced by the other party on the matter in question before the court is entitled to draw the desired inference. In other words, there must be a case to answer. The court must, however, consider the reason advanced for the absence of the witness. If the court is satisfied as to that explanation, no adverse inference can be drawn.’ (Moor J) | |
| Impugning an expert witness | TUI UK Ltd v Griffiths [2023] UKSC 48 | Depending on the circumstances of case, it may be unfair to allow detailed criticism of an expert witness who is not called for cross examination: (Also see ‘Obligation to put one’s case’ (below). |
| (6) CROSS-EXAMINATION | ||
| General standards: not abusing role as advocate | Code of Conduct, rC7.1 | ‘…you must not make statements or ask questions merely to insult, humiliate or annoy a witness…’ e.g. not repeatedly asking questions (‘badgering’), arguing or interrupting the witness |
| Akebia Therapeutics Inc v Fibrogen, Inc [2020] EWHC 866 (Pat) | [30] ‘[Badgering]… is not an acceptable way in which to treat an expert witness’ (Arnold J) | |
| Questions must not contain assertion, comment or personal opinion | FRC Efficiency Statement ¶28 High Court Efficiency Statement ¶17 | ‘…when conducting cross-examination advocates must avoid assertion, comment and personal opinion’ |
| Code of Conduct rC7.4 | ‘…you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so…’ (rC7.4) | |
| Wagner v Sec State Home Dept [2015] UKUT 655 | [10] ‘…mere comments by representatives under the guise of questioning of a party or witness are not appropriate. They are forbidden by the most elementary principles and rules of advocacy’ (McCloskey J) | |
| AO v LA [2023] EWHC 83 (Fam) | [60] ‘…cross-examination is often a largely pointless and futile exercise if it amounts to little more than counsel putting disputed facts to a witness. It is a dispiriting and largely useless experience for a judge to listen (often through translators) to lengthy cross-examination of a witness along those lines … [61] It is a very rare case where, without having been confronted by the documentary record or known or probable facts, a witness nonetheless collapses under cross-examination and admits that his witness statement is untrue.’ (Mostyn J) | |
| Avoid multi-part questions with complex syntax | e.g discussion of vulnerable witnesses at Equal Treatment Bench Book ¶¶ 160–164. | |
| Not make serious allegation without proper grounds | Code of Conduct, rC7.3 | Serious allegations must not be raised unless (a) one has reasonable grounds, and (b) the allegation is relevant to client’s case or credibility […] |
| Obligation to ‘put your case’ to a witness | Code of Conduct, rC7.2 | ‘…you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination…’ |
| TUI UK Ltd v Griffiths [2023] UKSC 48 | “[70] (i) The general rule in civil cases… is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. … (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule… Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.” | |
| Sait v GMC [2018] EWHC 3160 | [49] ‘…the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness… [53] If the allegation is serious… then in my judgment the allegation must be fully and squarely put in cross-examination to the accused…’ (Mostyn J) | |
| Obligation should not be applied too rigidly | Chen v Ng [2017] UKPC 27 | [52] ‘…the world is not perfect [and the obligation to put one’s case] … cannot be absolute requirements in every case’. List of five specific factors that might be relevant, at [55]. (Lords Neuberger and Mance) |
| Re B (A Child) [2018] EWCA Civ 2127 | [18] ‘…what is important is substance not form… rooted in the real world of litigation in which overall fairness can be achieved in a range of ways’ (Jackson LJ) | |
| Examining vulnerable witnesses | FPR 3A PD 3AA ‘The Advocate’s Gateway’ | Court’s duty to consider participation directions etc. (3A.4) Advocate’s Gateway Toolkits relating to learning disabilities, hidden disabilities etc. See Twenty Principles as expounded by Inns of Court College of Advocacy in criminal cases) |
| (7) RE-EXAMINATION | ||
| Rules | Cf. Equal Treatment Bench Book Ch. 1 ¶73 | Opportunity to clear up misunderstandings that ‘strictly arose out of the cross-examination’ (J. E, Singleton, ‘Conduct at the Bar’ (1933)). Leading questions not allowed |
| (8) JUDGE’S ROLE | ||
| Controlling the evidence | FPR 22.1 | Court may give directions as to issues on which it requires evidence, nature of evidence and way in which evidence is placed (see, e.g. Joy-Morancho v Joy [2017] EWHC 2086 (Fam) at [90]). |
| FPR 4.1 | In furtherance of overriding objective case management powers include (k) deciding in which order issues are heard, (l) excluding an issue from consideration. Court can exclude ‘conduct’ as an issue: Tsvetkov v Khayrova [2023] EWFC 130 [46 vi] (Peel J) | |
| A and Anor v B & Ors [2022] EWHC 3089 (Fam) | [47]–[51] Consideration of relevant factors in how a court should exercise its discretion to control evidence: first step to consider admissibility; second to undertake balancing exercise. (Knowles J) | |
| Fair conduct of trial/ not entering the arena | Serafin v Malkiewicz [2020] UKSC 23, | [37]–[46] Discussion of principles of unfair trial. Judges are now more interventionist during oral evidence but should be careful not to intervene excessively during cross-examination, such as would gave rise to an appearance of bias. Distinction with interventions during final submissions when the trial has reached its adjudication stage. (Lord Wilson) |
| Pre-determination | Re C (Children: Premature Determination) [2025] EWCA Civ 1481 | Summary at [4]-[8] |
| Grounds for recusal | Re H (A child) (recusal) [2023] EWCA Civ 860, [24-28] | “ [24] … The test for apparent bias involves a well-established two stage process…The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased : Porter v Magill [2001] UKHL 67” (Baker LJ) Where a judge has a direct personal interest, actual bias will be presumed; cf. far higher bar for apparent bias (see Harb v Prince Abdul Aziz [2016] EWCA Civ 556). |
| (9) LITIGANTS-IN-PERSON (‘LIP’) | ||
| Judge should assist a LIP | Matrimonial and Family Proceedings Act 1984 s.31G(6) | Court should ascertain from the LIP the matters upon which the witness ought to be cross examined, and put such questions as in the interests of justice appear to be proper. |
| However, caution should be exercised so that the court does not ‘enter the arena’. There should be no special assistance. | Barton v Wright Hassall LLP [2018] UKSC 12 | [18] ‘…any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side… unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a [LIP] to familiarise himself…’ (Lord Sumption) The court should be careful when adopting the role of an inquisitor: Crowther v Crowther [2007] EWCA Civ 2698 |
| (10) CLOSING SPEECHES | ||
| Lies and R v Lucas [1981] QB 720 direction | BY v BX [2022] EWHC 108, | [26(x)] ‘…The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. I am conscious that the fact that a witness has lied about some matters does not mean that he or she has lied about everything…’ (Cobb J) |
| Adverse inferences | Prest v Petrodel Resources Ltd & Ors [2013] UKSC 34 | [45] ‘These considerations are not a licence to engage in pure speculation. But judges exercising family jurisdiction are entitled to draw on their experience and to take notice of the inherent probabilities when deciding what an uncommunicative husband is likely to be concealing’ (Lord Sumption) |
| NG v SG [2011] EWHC 3270 (Fam) | [16] ‘(ii) …such inferences must be properly drawn and reasonable… [with] (iii)… a realistic and reasonable quantification of funds even in the broadest terms.’ (Mostyn J) | |
| Demeanour | R (Sri Lanka) v Sec State Home Dept [2018] EWCA Civ 1391 | [33] Shorthand for appearance and behaviour of a witness. Increasingly recognised as an unreliable and sometimes dangerous method of considering whether a witness is telling the truth. ‘[41]…to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices.’ (Leggatt LJ) |
| Re M (Children) [2013] EWCA Civ 1147 | ‘[12] … any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.’ (Macur LJ) | |
| Baker v Baker [2023] EWFC 136 | ‘[17] …in common with Lord Bingham and Lord Leggatt, I consider demeanour to be a highly unreliable method of judging veracity.’ (Mostyn J) | |
| Fallibility of recollection memory (‘Gestmin’) | Gestmin SGPS SA v Credit Suisse (UK) [2013] EWHC 3560 (Comm) | [15]–[23]: memories are ‘…fluid and malleable, being constantly rewritten whenever they are retrieved’. ‘The process of civil litigation itself subjects the memories of witnesses to powerful biases.’ (Leggatt J) |
| Kogan v Martin [2019] EWCA Civ 1645 | [88]–[89] ‘Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory… [in Kogan] the two parties were private individuals living together for much of the relevant time. That fact made it inherently improbable that details of all their interactions over the creation of the screenplay would be fully recorded in documents.’ (Floyd LJ) | |
| Credibility | Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 (HL) | ‘…[contemporary documents are] always of the utmost importance… Credibility involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be… First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth… Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? … It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.’ (Lord Pearce) |
| Tsvetkov v Khayrova [2023] EWFC 130 | [95] ‘… If he wanted to run this argument, he was obliged to do so in that statement. The argument first appeared in closing submissions, not having been notified to W or the court… H has had ample time to prepare for this case and advance his claims. As Lewison LJ memorably said in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at para [114]: “ii. The trial is not a dress rehearsal. It is the first and last night of the show.’ (Peel J) | |
| (11) JUDGMENTS | ||
| Purpose of a judgment | Re F (Children) [2016] EWCA Civ 546 | “[22] … The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam) para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist”.(Munby P) |
| Four points of guidance for judgments | Bates v Post Office (No 6) [2019] EWHC 3408 (QB) | “First, succinctness is as desirable in a judgment as it is in counsel’s submissions, but short judgments must be careful judgments. Second, it is not necessary to deal expressly with every point, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment. Third, the best way to demonstrate the exercise of the necessary care is to make use of the building blocks of the reasoned judicial process by identifying the issues which need to be decided, marshalling (however briefly and without needing to recite every point) the evidence which bears on those issues, and giving reasons why the principally relevant evidence is either accepted or rejected as unreliable. Fourth, and in particular, fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it…” (Fraser J) |
| Incumbent on parties to raise ambiguities or deficiencies in judgment | English v Emery Reimbold [2002] EWCA Civ 605 | Also see A v L (Children) [2011] EWCA Civ 1205 at 16-17] |
| Requests for clarification of judgment | YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71 | [9] The delivery of a judgment is not a transactional process. Its contents are not open to negotiation. Just as the trial is “not a dress rehearsal” but rather “the first and last night of the show” (per Lewison LJ in Fage UK Ltd v Chobani UK Ltd , supra, at paragraph 114), so the judgment is not a draft paper for discussion but the definitive recording of the judge’s decisions and the reasons for reaching them. It is therefore inappropriate to use a request for clarifications to reiterate submissions or re-argue the case, or to cite a part of the evidence not mentioned in the judgment and on the basis of that evidence ask the judge to reconsider the findings. In my view it is also inappropriate to couple a request for clarifications with a warning that an application for permission to appeal will be made if the clarification is not provided. I regret to say that this case provides examples of all of these inappropriate requests. Five point guidance at [90] |
| Invitation to reconsider and review judgment | Re L and B [2013] UKSC 8 | Also see AR v ML [2019] EWFC 56, per Mostyn J at [9-22] |
(c) ALEXANDER CHANDLER KC
18 October 2023 – Updated 14 February 2024
[1] For cases before a High Court Judge, see Efficiency Statement dated 1 February 2016
[2] Equivalent rule is 1 hour in a case before a HCJ
[3] As to the difference between ‘must’ (mandatory) and ‘shall’/ ‘should’, which allows wriggle room, see Shokrollah-Babaee [2019] EWHC 2135 (Fam), per Holman J at [14-16]
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