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Law Procedure

The Winds of Change

CASE MANAGEMENT IN THE FINANCIAL REMEDIES COURT: EXPECTATIONS OF COMPLIANCE

This paper was originally given as a talk at Wilberforce Barristers, Hull, on 19 January 2024.

INTRODUCTION

Once upon a time, not so long ago, ‘ancillary relief’ was something of a legal backwater. Cases were determined solely by reference to ‘reasonable requirements’[1]. Procedural rules were short[2] and loosely applied. Parties filed narrative affidavits of means and answered requests for further and better particulars. As a junior tenant, I experienced the tail end of this old regime: the pilot scheme which introduced Forms E and the FDR, coincided with my first day at work a pupil (1 October 1996), but only went nationwide on 5 June 2000.

In a single generation, ‘ancillary relief’ has developed from a relatively minor area of practice, typically heard by civil registrars/ district judges, into ‘financial remedies’, with its own court, specialist judges and bespoke procedural rules and guidance. The legal principles, post-White and Miller; McFarlane, have evolved from ‘the discipline of the budget’[3] to an often complex balancing of factors in the ultimate objective of fairness. The growth of rules, practice directions, forms and FRC guidance has been exponential.

The theme of this paper is the court’s increasing expectation that parties and their advisers will be aware of, and will comply with, this growing corpus of guidance. This is set out most clearly in a series of judgments from the National Lead Judges of the FRC, Mr Justice Mostyn (2018-2022) and Mr Justice Peel (2022-):

“…Court Orders, Practice Directions and Statements of Efficient Conduct are there to be complied with, not ignored… Why is it fair for one party to follow the rules, but the other party to ignore them? Why is it fair for the complying party to be left with the feeling that the non-complying party has been able to adduce more evidence to his/her apparent advantage?” Peel J, WC v HC (Financial Remedies: Agreements) [2022] EWFC 22 at [1(i)] (22 March 2022)

“…s25 statements must only contain evidence, and ‘on no account should contain argument or other rhetoric’. In this case, W’s over long statement crossed the line and descended into a number of personal, and prejudicial matters, directed at H which, in my view, were irrelevant to the matters at hand. Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms, and seek to paint an unfavourable picture, will assist their case. It is high time that parties and their lawyers disabuse themselves of this erroneous notion. Judges will deal with relevant evidence, and will not base decisions on alleged moral turpitude or what Coleridge J once famously described disapprovingly…as a ‘rummage through the attic’ Peel J, WC v HC (Financial Remedies: Agreements) [2022] EWFC 22 at [1(ii)] (22 March 2022)

“…This utter disregard for the relevant guidance, procedure, and indeed orders is totally unacceptable. I struggle to understand the mentality of litigants and their advisers who still seem to think that guidance, procedure, and orders can be blithely ignored. In Re W (A Child) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, paras 50-51, Sir James Munby P, having referred to “a deeply rooted culture in the family courts which, however long established, will no longer be tolerated”, continued: 

“I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders.” 

That was nine years ago. But nothing seems to change”, Mostyn J, Xanthopoulos v Rakshina [2022] EWFC 30 at [3] (12 April 2022)

“…I have said before on countless occasions, in court and publicly, that breaches of the two Efficiency Statements (one for High Court allocated cases, and one for cases allocated below High Court Level) are wholly unacceptable…I make no apology for speaking out in strong terms on this subject once again. Case management is a vital part of the financial remedies process, and legal representatives have a duty to assist the court in managing the cases efficiently and fairly. If counsel and solicitors are unfamiliar with these basic, essential requirements contained in the two Efficiency Statements (as seems to have been the case here), they should swiftly put that right.”, Peel J, GA v EL [2023] EWFC 187 (18 October 2023)

I do not suggest that family lawyers have thereby magically been transformed into civil litigators, whereby relief from sanctions will have to be sought every time a deadline is missed. But the direction of travel (‘Winds of Change’) in terms of the court’s expectation of compliance with increasingly detailed guidance is clear.

And while not every district judge or circuit judge may take as exacting an approach to, e.g. the contents of a s.25 statement, in my view this heightened expectation of compliance (comparable to some extent with the Jackson Reforms in civil litigation) is going to trickle down, and an awareness of the guidance described in this paper is going to make a difference on important matters of case management. In other words, this paper is not meant as a counsel of perfection, rather a summary of the lesser known provisions which may make an actual different in terms of how a court looks at a proposed questionnaire or witness statement, or deals with issues of conduct.

This paper assumes a working knowledge of FR procedure and does not deal with every single step such as filing Forms E etc. Its purpose is to cover the lesser known rules and authorities, structured around the stages of a typical financial remedy claim[4]. The key provisions are as follows:

Some of the points in this paper are expanded in my blog (‘Familybrief’). All underlined passages include hyperlinks to the relevant judgment or rule.

PREPARATION BEFORE THE FIRST APPOINTMENT

(1) Documentation that should be provided “…14 days before First Appointment the following steps should be taken”[6]

(a) Joint valuation of family home

Parties shall file a jointly obtained market appraisal of the family home. If a joint appraisal isn’t possible, each party should file a market appraisal “and must be expected to explain the reason for the impossibility to the court” : Efficiency Statement § 10a

(b) Property particulars and mortgage capacity

Each party should ‘use their best endeavours’ to file (i) ‘no more than 3 sets of property particulars’ setting out housing need for themselves and the other party, and (ii) indicative material as to borrowing capacity: Efficiency Statement§ 10b

(c) Exchange of statements of issue, chronology, Form C, service of mortgagees and… questionnaire

“…should not exceed four pages of A4 in length (using not smaller than a 12-point font with 1.5 spacing). The court is likely to approve a questionnaire in excess of 4 pages in a case where complexity (including alleged non-disclosure) justifies a longer set of questions”: Efficiency Statement § 10c

(2). Proposed instruction of experts

  • “Wherever possible” this should be on a SJE basis: FPR PD 25D § 2.1. The application should generally be made ‘no later than the first appointment’: FPR 25.6(d);
  • A list of proposed experts should be given to the other party, who should have two weeks (’10 business days’) to respond: FPR PD 25D §2.1-2.2;
  • Preliminary enquiries of the experts should have been made ‘in good time for the information requested to be available’ at the First Appointment, whereby basic information is sent to the proposed expert (FPR PD 25D § 3.3), the expert’s availability is ascertained along with timescale and cost (FPR PD 25D § 3.4; FPR PD 25B §8.1);
  • Part 18 application should be made, stating details of proposed expert (FPR PD 25D §3.11) with a draft order. 

(3) Accelerated Procedure

Where directions can be agreed, the costs of a First Appointment can be avoided by the parties using the ‘Accelerated Procedure’, which involves agreed directions (etc.) being sent to the court to be approved by a DJ on paper: see ‘Primary Principles’, Sch. 4.

(4) Non-court dispute resolution

Effective April 2024 are new rules that strengthen the court’s power to stay to enable NCDR: FPR 3.3(1A) provides that parties will be required to complete a form “…setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings”, and a new FPR 3.4(1A) which will enable the court to adjourn proceedings to encourage ADR without the parties’ consent (cf. recent CA decision in Churchill v Merthyr Tydfil [2023] EWCA 1416) 

(5) Court Bundle

Index agreed 4 days before; actual bundle lodged 2 days before First Appointment.

The pagination of an ebundle must be sequential (i.e. no Section A, B, C etc.), following the PDF numbering: see General Guidance on E-Bundles dated 29 November 2011. Bookmarks should be added. Speaking as a part-time judge, I cannot underline how aggravating it is to conduct a hearing where every single reference has to be given twice “…page C10 and for your honour it’s PDF page 64”. From a judicial point of view, complicance with the above guidance is a ‘three-line whip’ point.

THE FIRST APPOINTMENT

(1) What’s in a name?

If one wants to be pedantic, and let’s face it who doesn’t, it’s a ‘First Appointment’ not a First Directions Appointment – there are no references in the FPR 2010 to a ‘FDA’ or a ‘First Directions Appointment’ in the context of a financial remedies claim[7]. (Thanks here to Nicholas Allen KC who first put me right on this point).

(2) Top tips for attending a First Appointment

Two tips to anyone who is attending a First Appointment (or any hearing): (1) keep your note short, (2) attach draft directions which should always be based on the Standard Order templates (see ‘Position Statements’, below). Also bear in mind that FR orders should not summarise what happened at a hearing, or set out the parties positions, but only “record, shortly and neutrally, those essential background matters which are not part of the body of the order”: Efficiency Statement § 32

(3) Questionnaires

  • Strictly speaking, a questionnaire should be structured around a concise statement of issues and not the paragraphs of a Form E (FPR 9.14(5)(c)) – the significance being that a questionnaire should be focused on the issues, not a general audit of the Form E;
  • My personal view is that questionnaires often generate a lot more heat than light. If the litmus test is how often in preparing cross-examination does one refer back to replies or the documents produced, the answer is rarely. (See ‘The Unbearable Pointlessness of the Questionnaire’)
  • Useful questions tend to be directed to gaps in the disclosure (missing statements) or open questions that seek narrative responses in relation to issues such as earning capacity, housing need. It is also helpful to think ahead to what are likely to be the issues and lines of questioning at a final hearing, and consider what questions or documents might be relevant;
  • Useless questions and questions that tend to be struck out are questions that relate to schedules of outgoings, repetitive questions from the Form E, questions that duplicate directions (e.g. property particulars, mortgage capacity);
  • Judges aren’t meant to direct a party to answer a questionnaire ‘saving just exception’, since this derogates from the judicial task to actively case manage: FPR 9.15(2)(a) and (b). It also tends to store up problems in the future and make enforcement more difficult;
  • As to schedules of deficiency, bear in mind the difference between a deficient answer (which arguably can be resolved without a specific direction or permission) and a supplemental question which, strictly speaking, cannot: FPR 9.16(1) provides that:

(1) Between the first appointment and the FDR appointment, a party is not entitled to the production of any further documents except –

(a) in accordance with directions given under rule 9.15(2) [i.e. answering the questionnaire]; or

(b) with the permission of the court.

(4) Experts

  • Permission to rely on an expert report: The test, as everyone knows, is necessity (FPR 25.4(3)), which means, err, that the evidennecessary’[8]. The court must have regard to checklist of factors at FPR 25.5(2) including (e) cost;
  • Bear in mind the President’s Memorandum on Experts (4 October 2021) which, applying Kennedy v Cordia (Services) LLP [2016] UKSC 6, sets out four governing criteria: (i) will the proposed expert evidence assist the court, (ii) does the witness have the necessary knowledge and experience, (iii) is the witness impartial, and d(iv) is there a reliable body of knowledge to underpin the expert’s evidence
  • The length of the expert report is covered in FPR PD27A, at §5.2A.1: maximum of 40 pages subject to court specifically directing otherwise (not including exhibits);
  • Questions to the expert “must” be for the purpose of clarification of the report, copied to the other side, and put 10 days after the report is received: FPR 25.10(2)

(4a) Expert pensions actuaries/ PODE

Pension reports range from being very useful in some situations e.g. equalising incomes in retirement, particularly where there are Armed Forces or services pensions which are notoriously difficult to value; to being of limited utility in a case where the parties are some way off retiring and there is going to be a clean break (e.g. where pensions can be divided by reference to notional capital/ cash equivalent value).

Bear in mind proportionality. Possibly not essential where parties are looking at equal sharing of cash equivalent values of pensions. According to the latest PAG report (aka PAG 2), a PODE report is rarely justified where the parties are under 40 or combined pensions are under £100k (see p.31-32)

PAG2 also reflects the line of cases that PODE reports may not be required in bigger money cases, e.g. Mr Justice Moor in CMX v EJX (French Marriage Contract) [2022] EWFC 136, who commented as follows:

“[50] … If assets are to be divided equally, they should be divided equally. In general, there is no justification for awarding more to one party because they are younger or have a longer life expectancy. Both parties should share the fruits of the marriage equally. Moreover, in my experience, the only thing that can be said is that life hardly ever goes to plan, whether it be one party living far longer than expected or another remarrying immediately. It follows that I have become very troubled by directions that ask a pensions actuary to calculate a division on the basis of equality of income in retirement. Apart from the fact that such reports tend to be very expensive, the simple fact is that such a direction almost enshrines the Duxbury paradox into practice. It cannot be right, in general, that the younger you are, the greater your award. In any event, it has no place whatsoever in equal division cases.

The above guidance needs to be read with some caution, i.e. it related to a substantial asset case where the assets were £24mn. But if the outcome is going to be based on equal sharing (as opposed to a needs based outcome) query if there’s any need in a detailed report.

(4b) Forensic accountants / company valuations

Questions to the forensic accountant typically address: the value of company/ shareholding, liquidity (i.e. can any surplus funds be withdrawn, and if so when), tax and sustainable level of remuneration. Issues of discount (whether held as quasi partnership) are factual matters for the court. Only rarely will a forensic accountancy report involve a detailed audit (i.e. checking the veracity of the accounts) due to issues of proportionality.

If there is to be a SJE report relating to the business, this might militate the need for the shareholding spouse replying to a lengthy questionnaire seeking disclosure of company documents – since the SJE will be making his/ her own enquiries.

There is an excellent recent judgement by Peel J (HO v TL [2023] EWFC 215) which summarises seven legal principles relating to the court’s treatment of company shareholdings (see §21 to 27), including (ii) that “…valuations of private companies can be fragile and uncertain”.

(4c) Employment consultant

This crops up occasionally but was roundly condemned by Mr Justice Moor in Buehrlen v Buehrlen [2017] EWHC 3643 (Fam)

[20] On any application for financial remedies, the judge has to apply s.25 of the Matrimonial Causes Act and has to make an assessment of the earning capacity of both parties, including any increase in such earning capacity as it would be reasonable for the litigant to take steps to acquire in the foreseeable future. That is what judges do every single day of the week. How do they do it? They do it by listening to cross examination; by the provision of advertisements for suitable jobs; by the results of job applications; by considering the CVs of the parties; and the like. They assess all this evidence. It is extremely rare for an expert to be called. Indeed, that was the case before the rules changed to require necessity.

[21] Is it necessary for a judge to hear evidence from an expert? I have already indicated in this judgment that I take the opposite view to Mr Buehrlen. I fear that giving permission to rely on this evidence will make it less likely that this case will settle rather than more likely. Such evidence tends to polarise parties. The evidence is then challenged whether by questions to the expert or an alternative report.

CONDUCT

In OG v AG [2020] EWFC 52 Mostyn J described how conduct arises in four distinct scenarios: (1) gross and personal misconduct which only arises very exceptionally, (2) add back, (3) litigation misconduct, (4) drawing adverse inferences – where the exercise relates to the process of computation rather than distribution;

More recently, there has been an important authority relating to case management of where a party seeks to raise conduct based on inequitable conduct (not litigation misconduct): Tsvetkov v Khayrova [2023] EWFC 130, which concerned a Russian couple where the court made a series of findings about the wife’s conduct including how she had ‘spirited away’ jewellery and hidden handbags worth £800k.The important section is as follows (my use of bold):

“[43] A party asserting conduct must, in my judgment, prove: (i) the facts relied upon; (ii) if established, that those facts meet the conduct threshold, which has consistently been set at a high or exceptional level; and (iii) that there is an identifiable (even if not always easily measurable) negative financial impact upon the parties which has been generated by the alleged wrongdoing. A causative link between act/omission and financial loss is required. Sometimes the loss can be precisely quantified, sometimes it may require a broader evaluation. But I doubt very much that the quantification of loss can or should range beyond the financial consequences caused by the pleaded grounds. This is stage one. 

[44] If stage one is established, the court will go on to consider how the misconduct, and its financial consequences, should impact upon the outcome of the financial remedies proceedings, undertaking the familiar s25 exercise which requires balancing all the relevant factors. This is stage two. 

[45] I have noted an increasing tendency for parties to fill in Box 4.4 (the conduct box) of their Form E by either (i) reserving their position on conduct or (ii) recounting a litany of prejudicial comments which do not remotely approach the requisite threshold. These practices are to be strongly deprecated and should be abandoned. The former leaves an issue hanging in the air. The latter muddies the waters and raises the temperature unjustifiably. 

[46] In my view, the following procedure should normally be followed when there are, or may be, conduct issues: 

  1. Conduct is a specific s25 factor and must always be pleaded as such. It is wholly inappropriate to advance matters at final hearing as being part of the general circumstances of the case which do not meet the high threshold for conduct. That approach is forensically dishonest; it impermissibly uses the back door when the front door is not available: para 29 of RM v TM [2020] EWFC 417. 
  2. A party who seeks to rely upon the other’s iniquitous behaviour must say so at the earliest opportunity, and in so doing should; (a) state with particularised specificity the allegations, (b) state how the allegations meet the threshold criteria for a conduct claim, and (c) identify the financial impact caused by the alleged conduct. The author of the alleged misconduct is entitled to know with precision what case he/she must meet. 
  3. Usually, if relied upon, the conduct allegations should be clearly set out at Box 4.4 of a party’s Form E which exists for that very purpose. 
  4. The court is duty bound by FPR 2010 1.1 to have regard to the overriding objective  
  5. In furtherance of the overriding objective, it is required to identify the issues and empowered to determine which issues should be investigated. At FPR 2010 1.4 […] 
  6. The court should determine at the First Appointment how to case manage the alleged misconduct. In my judgment, in furtherance of the overriding objective and FPR 2010 1.4, the court is entitled at that stage to make an order preventing the party who pleads conduct from relying upon it, if the court is satisfied that the exceptionality threshold required to bring it within s25(2)(g) would not be met. The court should also take into account whether it is proportionate to permit the allegation to proceed, for a pleaded conduct claim usually has the effect of increasing costs and diminishing the prospects of settlement. Finally, the court should take into account whether the allegation, even if proved, would be material to the outcome. 
  7. Of course, in some instances alleged conduct may rear its head after provision of Forms E. One obvious instance is where a party wantonly dissipates monies in the lead up to trial. Should a party seek to advance a conduct claim, this must be brought before the court as soon as possible so that it can be case managed appropriately. 
  8. Wherever conduct is relied upon, and the court permits it to be advanced at trial, it should be pleaded. It will be for the court to decide how best to manage the issue. Usually, an exchange of short, focussed narrative statements will suffice (page limits are an indispensable tool in the judicial armoury and should be deployed) but such statements must set out in particularised detail (a) the facts asserted, (b) how such facts meet the conduct threshold, and (c) what consequential financial loss or detriment has occurred. 

[47] Finally, and for the avoidance of doubt, this suggested procedural route will not be necessary or appropriate where a party relies only on litigation misconduct. The court will ordinarily be able to deal swiftly with costs at the hearing in time honoured fashion.” 

This is an important and radical interpretation of the court’s general case management powers (FPR Pt 4.1 which includes at (l) the power to “exclude an issue from consideration”). Accordingly, where conduct is relied upon, the Form E should set out concise details of the argument and its alleged impact (I would suggest in a rider), and parties should be prepared to argue the question of whether permission should be granted to proceed with conduct arguments including ‘add back’ arguments (but not litigation conduct) .

What about ‘coercive control’?

Conduct has traditionally involved an extremely high hurdle (‘the gasp factor’[9]), and attempts thus far to bring ‘coercive control’ into account (at a level that does not meet the conventional s.25(2)(g) standard) have thus far been unsuccessful: see Traharne v Limb [2022] EWFC 27, where the allegations were found not proven;

Northern Ireland is a separate jurisdiction to England and Wales and the decisions of the NI courts are not binding on English courts, but there is an interesting recent decision (Seales v Seales [2023] NIMaster 6), where (NI) Master Bell suggested that in light of cases such as Re H-N & Ors [2021] EWCA Civ 448, the law should now be reviewed:

“[42] …it may be that other expressions used by lawyers, such as “the gasp factor” (used in S v S), should now be regarded as overstating the position and raising the high threshold above what Parliament actually intended. There is, in my view, a clear obligation on the court in ancillary relief proceedings to recognise cases of coercive control because it would be inequitable to disregard that coercive control. I recognise that there is a clear risk that, in taking coercive control into account in ancillary relief proceedings, courts will be asked to delve into factual situations which are not “obvious and gross”. In my view that risk should not be overstated.

There is also an interesting potential argument following the enactment of the Domestic Abuse Act 2021, whether a financial remedies award can include an element to encompass ‘economic abuse’, see decision of HHJ Reardon DP v EP (Conduct; Economic Abuse; Needs) [2023] EWFC 3 

FDR

There probably isn’t much to say about preparing for an FDR, save that the Efficiency Statement confirms that “…it is unacceptable for the court to be presented at the FDR or final hearing with competing asset schedules and chronologies” (§ 13).

But as a matter of good practice, if there is an issue about housing need (which invariably there will be) please (a) make sure the particulars relied upon are consistent with one’s own case, (b) produce a map which identifies where the properties are located, (c) include full particulars which have a floor map – so the court can actually see the size of the properties, (d) think about objective relevant factors (catchment areas for local schools, drive time to work etc) so the FDR tribunal isn’t faced with low quality ‘evidence by proxy’ (my client says this is a rough area, my client’s support network isn’t there etc). See my blog on housing need (‘Housing Need: A Plea for Change’)

Private FDRs

  • If the parties propose a private FDR, and the court agrees to this course, the order permitting this course shall: a. identify the private FDR evaluator; b. dispense with the in-court FDR; c. state that the private FDR once fixed may only be adjourned by agreement or pursuant to an order of the court; and d. provide that the matter shall be listed for a mention shortly after the private FDR, with this hearing to be vacated if a consent order is filed and approved by a judge in advance of the hearing. The order will normally be made at the first appointment. If the identity of the private FDR evaluator has not been agreed by that point the parties must bring to the appointment details, including the fees, of their proposed evaluator. If the identity of the evaluator cannot be agreed at the appointment the court will resolve the issue: Efficiency Statement § 15;
  • Also see guidance in AS v CS (Private FDR) [2021] EWFC 34, e.g. where one party seeks to back out of an private FDR (not without consent or the court’s permission) – see Mostyn J at [16].

DIRECTIONS AFTER FDR

It’s sometimes difficult to know where to draw the line between those directions a FDR judge can make and those he/ she should not: see the recent blog of Nick Allen KC in the FLJ (“Myerson No 1 and FPR 9.17(2): What Can the FDR Judge Actually Do?”). The court should make directions but might be reluctant to deal with hotly contested issues such as Daniels v Walker applications. Generally speaking, the following should be directed:

(1) Open proposals

The FPR 2010 provide for two rounds of open proposals (although there is nothing preventing a party repeating their first proposal):

  • Firstly, after FDR, normally 21 days (FPR 9.27A); Secondly, before the final hearing, 7 and 14 days before the final hearing (FPR 9.28);
  • FPR 28.3(6) provides that costs orders might be made where appropriate, in case (28.3(7)) of litigation misconduct, having regard to the terms of (“b”) open proposals. FPR PD28A §4.4 provides that:

“…the court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court”

  • There are a growing number of cases in which the court can take a party’s failure to make a reasonable open proposal into account on costs, e.g. the leading decision of Mostyn J in OG v AG [2020] EWFC 52, who commented at [31]

“…It is important that I enunciate this principle loud and clear: if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing”

(2) Pre-trial review

  • Must be listed (ideally before the trial judge) where the final hearing is listed for 3 days or more (Efficiency Statement § 17)
  • NB Where a party is relying on auditing spreadsheets (i.e. showing how a party has spent capital), this must be dealt in advance (i.e. at the PTR) and not on the morning of the final hearing:

“[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.’ WC v HC (Financial Remedies: Agreements) [2022] EWFC 22 (Peel J)

(3) Final hearing template

  • This “must” be prepared, to: a. allow a reasonable and realistic time for judicial reading and judgment writing; b. not normally allow longer than 30 minutes for opening; and c. not normally allow for any evidence-in-chief. Pursuant to FPR 22.6(2), the parties’ section 25 statements will normally stand as their evidence-in-chief. Efficiency Statement §19
  • As a general rule of thumb, it is not a good idea to list a final hearing for 1 day unless the evidence can be finally heard by 1pm. If the court is still hearing evidence after 2pm, there will probably be insufficient time for closing submissions, consideration and delivery of judgment;

“[31] Going part-heard is a bane with potentially damaging consequences on a number of fronts. One consequence may well be that another case will be thrown out of the list. Another is that parties, as here, often seem to think that the delay opens the door to the adducing of further evidence. A further downside is that the evidence about facts in issue begins to fade from the judicial memory. And obviously, circumstances can change during the interregnum.

[32] What all this means is that at the pre-trial review there must be the most careful examination of the time estimate, and of the trial template, to ensure that going part-heard at trial is avoided at all costs…”

(4) Section 25 witness statements

“[1] too many witness statements are prepared in breach of proper professional standards…

[7] A witness statement must not: a. quote at any length from any document; b. seek to argue the case; c. take the court through the documents in the case; d. set out a narrative derived from the documents; e. express the opinions of the witness; or f. use rhetoric…

[15] A witness statement must be as concise as possible without omitting anything of significance.

[16] As a general standard, a witness statement should not exceed 15 pages in length (excluding exhibits). This page limit is a statement of best practice and does not derogate from the limit of 25 pages in PD 27A para 5.2A.1, which should be regarded as a maximum.

  • Conduct should not be covered in s.25 statement (even though it appears as one of the factors), particularly when they are to be exchanged simultaneously. Where it is being pursued, separate directions should be made for evidence on conduct (setting out what is relied upon, the basis, and what effect the alleged conduct should have) with the respondent then having the opportunity to respond. Also, per Tsvetkov v Khyarova (see above), permission should be sought.
  • It may be helpful to identify in the directions which issues (or sub-sections in s.25) are being relied upon, together with the maximum page count: best practice is 15 pages; maximum is normally 25 pages (Efficiency Statement §22(j));

(5) Daniels v Walker applications

  • Where a party disagrees with a SJE’s report (and has exhausted the avenues of raising clarification questions) there is the possibility of an application to rely on a second expert’s report.
  • This has always involved a far steeper climb in family proceedings than in civil. There has also been a dearth of FR authority until very recently. In GA v EL [2023] EWFC 187 Peel J confirmed that the test would be whether additional expert evidence was necessary, having regard to a number of civil authorities:

[28] Whether the further expert evidence is ‘necessary’ will be informed by the approach advanced in

Daniels v Walker [2000] EWCA Civ 508 and several subsequent cases including Cosgrove & Anor v Pattison [2001] CPLR 177, Peet v Mid-Kent Healthcare NHS Trust[2001] EWCA Civ 1703 andKay v West Midlands Hinson v Hare Realizations Ltd. From these authorities, I draw the following principles:

(i)  The party seeking to adduce expert evidence of their own, notwithstanding the fact that a single joint expert has already reported, must advance reasons which are not fanciful for doing so

(ii) It will then be for the court to decide, in the exercise of its discretion, whether to permit the party to adduce such further evidence.

(iii) When considering whether to permit the application, the following non-exhaustive list of factors adumbrated in Cosgrove & Anor v Pattison (supra) may fall for consideration:

“… although it would be wrong to pretend that this is an exhaustive list, the factors to be taken into account when considering an application to permit a further expert to be called are these. First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly, the reason the new expert is wanted; fourthly, the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application; seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any special features of the case; and finally, and in a sense all embracing, the overall justice to the parties in the context of the litigation’.

(iv) For my own part, I would draw particular attention to the words “the overall justice to the parties in the context of the litigation” which seems to me to encapsulate neatly the court’s task.

POSITION STATEMENTS GENERALLY

Length and content

  • Length: should be concise and as best practice should not exceed 6 pages (First Appt), 8 pages (interim hearing), 12 pages (FDR), 15 (final hearing): Efficiency Statement ¶ 24(a). The maximum is as per FPR PD 27A §5.2A.1.

Content: should ‘define and confine the areas of controversy… not include extensive quotations from documents’ and should include a summary of the parties’ open negotiations: FRC Efficiency Statement ¶ 24(b-h)

Citation of legal authority

  • First state the proposition of law, then identify the parts of the authority that support the proposition, without extensive quotation: FRC Efficiency Statement ¶ 24
  • Give the neutral citation where it exits (post 11 January 2001)[10] and where possible give the Official Law Report citation (i.e. [2022] Fam 1[11]);

“…leading counsel on both sides referred to the authorities in a measured and controlled way and spared the court the incontinent citation of numerous vaguely relevant causation authorities, all too common in appeals of this type. We are very grateful to them”.

  • What cannot be cited as an authority?

It is important to bear in mind the difference between a judgment that has been published on the National Archives / BAILII, and a judgment that can properly be cited as an authority. While all judges in the family court have been encouraged to publish 10% of their judgments online (see Confidence and Confidentiality § 53), judgments at DDJ, DJ, circuit judge or recorder level cannot generally be cited unless they purport to establish a new principle, or extend the present law (or unless there is no available decision at a higher level). Following the Lord Chief Justice’s Practice Direction on Citation of Authority (9 April 2001) § 6, the following cannot be cited as authority:

  • Applications attended by one part only;
  • Permission to appeal
  • Decisions of circuit judge and below unless there is no available decision at a higher level

COSTS

The general rule is that there will be no order as to costs in financial remedy proceedings (FPR 28.3(5))[12]. The points to note are as follows:

  • A different order will be made in cases of litigation misconduct, which includes where a party has failed to negotiate openly and reasonably (see above);
  • The court may also make orders adjusting for a gross disparity between the parties’ costs. In YC v ZC [2022] EWFC 137 W’s costs were almost three-times as high as H’s (£463k / £159k) and the court added back £200k:

“[42(viii)] …The court should be slow to allow the grossly disproportionate spender (and the solicitors representing such a person) to feel that there is no check on legal costs spending. A proportionality assessment taking into account the costs being incurred in the context of what is in reality at stake in the dispute is surely an essential requirement at all stages… In obvious cases, and absent any proper explanation for the differential in spending, the court can deal with any unfairness arising from the differential in legal costs spending by making an adjustment in the court’s asset schedule before distribution, for example by excluding a portion of the over-spender’s unpaid costs and/or adding back a portion of the over-spender’s costs already paid, thus appropriately penalising the over-spender without actually making an inter partes order for costs”

  • Increasingly, in future, costs arguments may relate to a refuse to engage in NCDR with the coming amendments to the rules and in light of cases such as Mann v Mann [2014] EWHC 537 (Fam) and CA’s decision not to follow the ‘Halsey’ rule in Churchill v Merthyr Tydfil [2023] EWCA 1416) whereby parties can now be ordered to attend NCDR.
  • Finally, as a general observation, practitioners should resist the temptation to habitually threaten ‘wasted costs’ and ‘indemnity costs’, without recognising that these terms have specific meanings, i.e.
  • a wasted costs order is payable by a legal representative as a result of improper, unreasonable or negligent acts or omissions (Senior Courts Act 1981 s.51(6, 7)) – not the same as a costs order following a hearing that turned out to be a waste of time;
  • indemnity costs involve any doubt on an assessment of costs being resolved in favour of the receiving party (as opposed to the general basis, where doubts are resolved in favour of the paying party) and are made in cases of unreasonable conduct – rare in practice.

ALEXANDER CHANDLER KC

1 Kings Bench Walk, Temple, London

10 January 2024

[1] O’D v O’D [1976] Fam 83 per Ormrod LJ

[2] Family Proceedings Rules 1991 rr 2.52 to 2.68 etc.

[3] As discussed by Baroness Hale in Miller; McFarlane [2006] UKHL at [139]

[4] i.e. Standard Procedure (FPR 9.12 onwards) applies, no third-party intervenors, no interim applications

[5] As opposed to the older Efficiency Statement that applies in High Court cases dated 1 February 2016

[6] Efficiency Statement § 10

[7] It exists in relation to adoption proceedings, e.g. FPR PD 14B.

[8] “What is meant by ‘necessary.’… The short answer is that ‘necessary’ means necessary. It is, after all, an ordinary English word…If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535,  paras [120], [125]. This court said it “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” Re H-L [2013] EWCA Civ 655 per Munby P

[9] Expression of Nicholas Mostyn QC in S v S (Non Matrimonial Property: Conduct) [2007] 1 FLR 1496

[10] Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194 §2.3

[11] Practice Direction: Citation of Authority [2012] 1 WLR 780)

[12] As defined by FPR 28.3(4)(b) excluding interim maintenance/ MPS, interim orders and cases where the ‘clean sheet’ applies, such as intervenor claims

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