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Navigating Uncharted Waters in Sch 1: DN v UD and the FU Fund

DN v UD (Sch 1 Children Act: Capital Provision) [2020] EWHC 627 (Fam)

When Parliament enacted the Children Act 1989, instead of framing new law relating to financial claims on behalf of children, it chose to consolidate earlier statutes. Section 15 of the CA 1989 explains that

“Schedule 1…consists primarily of the re-enactment with consequential amendments and minor modifications, of provisions of the Guardianship of Minors Acts 1971 and 1973, the Children Act 1975 and of sections 15 and 16 of the Family Law Reform Act 1987”.

And this shows.

If there was a contest for opaque legislative drafting, Schedule 1 would probably ‘medal’. Even basic questions are difficult to answer:

Q. ‘Can a parent bring an application when the ‘child’ is over 18?’

A. The conventional view is no, because…

  • Sch. 1, para 1(1), provides that a parent can bring a claim on behalf of a ‘child’.
  • A ‘child’ is defined at s.105 as being under the age of eighteen, although this is subject to…
  • Sch 1, para 16, which extends the definition to include someone over the age of 18 who is bringing an application for himself pursuant to paragraph 2 or 6, i.e. periodical payments and a lump sum or the variation of an existing order

A contrary view is set out in an excellent article by my colleagues, Richard Harrison QC and Millicent Benson, “Illegitimate Claims? Schedule 1 claims for periodical payments by parents of adult children” in Family Law [2019] 505 – it is argued that Schedule 1 could be interpreted in such a way as to permit such an application on behalf of an adult child, either (1) by way of a purposive interpretation of the statute (cf. Pepper v Hart), or (2) that the prohibition unlawfully discriminate between the children of unmarried couples and divorced couples (where this is possible). Until recently, this had not been tested at court.

Several other clanking provisions of Schedule 1 are difficult to understand or explain. Why does Schedule 1 contain the power for a transfer of property (Sch 1, para 1(2)(e)) where there has never (thus far) been a case where property is settled on anything other than a reversionary basis? What about the provision that an adult child cannot pursue his own application where a maintenance order had been in place prior to his 16th birthday (Sch 1, para 2(3)).

DN v UD casts a searching light into some of the more dusty corners of Schedule 1. It is a decision of Mr Justice Williams who, in terms of the precision and length of his judgments, recalls the approach of Mr Justice Charles (of the 484 paragraph judgment)

And when I say ‘long’, I mean long. The judgment in DN v UD is a little over 42,000 words. By way of comparison, The Great Gatsby is 47,000 words. If DN v UD was published, it would classify as a short novel. If there was ever any doubt that technology leads to longer judgments (where detailed chronologies and passages can be cut and paste into ever longer judgments) DN v UD helps put those doubts to rest.

The brief facts are as follows: the parties are unmarried Russian nationals who have lived in London since 2010. The claim was brought on behalf of three children aged 20, 17 and 12 at the date of application, and 22, 19 and 14 by the date of the final hearing. The father (‘UD’) was wealthy and ran the ‘millionaire’s defence‘ (i.e. I can afford any order the court might reasonably order, so need not disclose my financial position in detail). Extensive findings were made against the father at a fact finding hearing in October 2018.

The case involved judicial consideration of a number of interesting points, and several surprising and groundbreaking decisions:

  1. Could the court make orders on the mother’s application for children over the age of 18

Perhaps unexpectedly, Williams J concludes that provided the application is made before the child turns 18, the court has the power to make orders, even where at the date of the hearing the child is over that age:

[42]. The effect of Sch 1, para 3 which permits the court to backdate a periodical payments order to the date of the application and to extend it beyond the child’s 18th birthday would support the construction that an order for periodical payments can be made for the first time after the child reaches the age of 18 provided that the application was made prior to the child’s 18th birthday… It seems to me that if the court has the power to make a periodical payments order in respect of a ‘child’ who has reached the age of 18 where the application was made prior to the 18th birthday that the court would also retain the jurisdiction to make other species of order under para 1.

Accordingly, on the facts of DN, the court could make orders in favour of the parties’ middle child (17 when application was issued, 20 at trial). However, there was no power to make orders with respect to the elder child who was 20 at the date of application and 22 by final hearing:

[49] (ii). “…I do not consider that it can be read or given effect in a way which allows an application for an order in respect of an adult child“

[49] (iii) “…I am not convinced (although I am not deciding) that the absence of the right of a parent to make an application on behalf of an adult child amounts to discrimination against the child in the substantive article 8 right.”

2. Human Rights Act compliance

The court declined the invitation to rule that the provisions of Schedule 1 relating to the above were incompatible with Convention rights as the procedural requirements (i.e. notice to the Crown) had not been met, and full argument had not been heard.

3. Overview of the law

Between [50] and [71], Williams J conducts a comprehensive review the court’s approach to Schedule 1, with the evolution of the ‘carer’s allowance’ and the (still) leading case of Re P; and between [72] and [85] the court reviews the court’s approach to cases involving children over 18. With respect to the power to make orders that last beyond childhood (including tertiary education) the court concludes

[85] The net effect of all of the authorities is clear. Absent special or exceptional circumstances capital orders which provide a benefit beyond minority or the cessation of tertiary education should not be made. It is equally clear that what can amount to special or exceptional circumstances is restricted. Matters relating to changing societal attitudes, the wealth of a parent, or the like will not suffice. Disability creating an ongoing need for support might. The absence of a parent playing any supporting role for their child might. The appellate courts have recently eschewed glosses upon statutory language. In this case the identification of exceptional or special circumstances warranting the making of outright capital orders for the benefit of children does not seem to me to amount to a gloss but rather is an application of the statutory powers based on principles which emerge from case law. The power to make outright capital transfers exists but will only be deployed in limited circumstances and where the evidence justifies it. It seems to me that what one is focusing on is the child and whether there is something about this child or this child’s situation in particular vis-à-vis that parent that creates a situation which exceptionally (i.e. as an exception to the usual rule) generates a need for the child to be provided with capital which will be of benefit to them as an adult possibly for many years

4. Provision for the adult children: the FU Fund

In its judgment, the court made a series of factual findings that the father’s behaviour, in terms of abusive and financially controlling actions, such as had left the children vulnerable. It should not be overlooked that this was an exceptional case. The court’s solution to this is the innovation of an ‘FU Fund’ which (some readers may be disappointed to find out) does not stand for what one might think, but in fact stands for ‘Financial Ultimatum’:

[162] … It therefore seems to me more probable than not that when the children do reach adulthood and do not willingly return to his fold that they are likely to face some sort of financial ultimatum from their father. At that point they will be peculiarly vulnerable as the maintenance will have come to an end and they will have lost their long-term home in the London Apartment. At that point they will be at their most vulnerable to the exertion of financial control whether directly or indirectly via the mother who will also be vulnerable at that point. I therefore consider that their vulnerability or potential dependency upon their father results in a clear need for financial and emotional protection. This protection can only be provided by giving them a sufficient degree of financial independence from the father to allow them to withstand the sort of pressure that is likely to be brought to bear upon them through some sort of financial ultimatum and which the emotional abuse they have sustained makes them so vulnerable to. That, I am satisfied, amounts to an exceptional circumstance which justifies the making of a capital award which will endure beyond their minority, beyond their dependency whilst in education and into an indeterminate future. Only by giving them the means to say no to their father’s exertion of financial control can they be properly protected and provided for in the future. I’m quite satisfied that this is a legitimate use of the Sch 1 provisions…

I ask myself rhetorically, if this situation does not amount to an exceptional circumstance justifying their deployment what, other than physical disability or clear lack of capacity, would? Thus I consider that they need and that their welfare justifies the provision of a ‘financial ultimatum’ (FU) fund to enable them to deal with this probable scenario.”

The court made no determination as to how this would be drafted (whether as a settlement, lump sum or property adjustment order) but provided that the two younger child should receive an interest in the London apartment (valued at £10m) worth c. £650,000 each. This would match the value of a property earlier gifted by the father to the elder child.

It will be fascinating to see if Williams J’s innovation of the ‘FU fund’ (or indeed the conclusion as to the court’s jurisdiction) proceed to appeal, and if so, herald the extension of the court’s exercise of Schedule 1 powers (albeit in exceptional cases).

Alexander Chandler, 19 June 2020

Categories
Comment

What we’re doing when we negotiate at FDR

What’s the longest you’ve ever waited at court for a party to make an offer at an FDR? Two hours? Three?

How many times have you sat in a conference room, running out of small talk, snatching glances at a clock that never tells the right time? Your side waits patiently for the other side to respond to the indication, only to find out that in an identical room in another part of the court building (remember those?) they were waiting for you to make the first move? Or that they’d actually gone home half an hour ago.

It sometimes feels strange that in a field of law which so underlines the importance of negotiated settlement, which invented the FDR (and subsequently the VIP area that is the private FDR), that when it comes to negotiation, we’re basically all – solicitors and barristers – amateurs.

Which isn’t to say that we can’t negotiate. You can’t be a successful financial remedy practitioner without being able to negotiate competently. Some people have a preternatural instinct for pitching an offer in exactly the right spot (the Goldilocks instinct, or what Sir Geoffrey Boycott would call the corridor of uncertainty). But if you asked what is their negotiating strategy, or what negotiating tactics have they used, you’d draw a very blank expression.

Our awareness of negotiating theory is limited to saying things like “I’m not negotiating against myself”, or “I’m not going to let this be a Dutch auction” (I’ve said this several times, hoping my opponent doesn’t ask me to explain what exactly is a Dutch auction). Even complex litigation concludes in the spirit of the souk: “Final offer! This is my final offer! No way can I sell you this carpet for less. I would be stealing bread from my own children’s plate… Ok, ok, we split the difference, yes?”

We negotiate in the same way most people play chess: we know how the pieces move. We know the aim is to capture the other side’s king. We plan maybe one or two moves ahead. But few arrive at court thinking “today I’m going to make the Albin Countergamble”.

Masterclass on Negotiation

It’s difficult at the moment to go online without being bombarded by adverts for MasterClass. This is a subscription site which involves famous film directors, chefs, DJs and interior designers giving bite-sized classes in essential life skills like making a Hollywood film, running a Michelin star restaurant, and getting your dance album to number one. My wife has a subscription. (I’m far, far too cheap to buy one myself). The one class I’ve watched is by Chris Voss, a gravelly voiced former CIA hostage negotiator, who has a twelve part series on negotiation theory.

It’s broken down into short segments with titles that sound like airport novels: “Bargaining”, “Bending Reality”, The Accusation Audit”. I wouldn’t exactly describe the approach as scientific. There are plenty of examples of common sense practices being labelled and packaged and sold to the person gullible enough to be watching (me) or paying (my wife).

But it does remind you that Out There (in the world of commerce) people take this stuff seriously. And sometimes you’ll have a client who comes from that background who will be surprised that you aren’t discussing in conference how you intend to deploy Tactical Empathy (TM) or Mirroring (TM) in the negotiation.

To be honest I don’t yet know if I have benefitted from watching these classes. And to be even more honest I’ve only watched 3 of the 12. (Like most of these things, it’s not that interesting beyond the first fifteen minutes).

My main reaction is a sense of relief that a lot of what’s being discussed is what already takes place (eg finding common goals, not being overly aggressive, not boxing yourself in). If you google studies on negotiation you get pearls of wisdom like “Don’t gloat” (Stanford Business School), which you’d sort of think should be taken as read. So while it can’t hurt to think in terms of negotiation strategy, I’m certainly not saying that we all need to subscribe, or get into using these new terms. After all, a FDR isn’t the same as a classic commercial negotiation: there are effectively three parties and the most important job is persuading the judge, who has no skin in the game. Which skews the application of game theory.

But on reflection I do think there’s something a little quaint about high octane litigation, multi-million pound claims, being resolved in such an unstructured way. Which until recently involved offers being written down in blue books with fountain pens, often in such bad handwriting that it’s sometimes impossible for even the writer to read. Or where particularly grand counsel (you know why you are) rely on pupils as scribes to take a note of the terms.

Admittedly we have all had some perfunctory training in negotiation. But for those who remember Bar School or Law School as being a bit Mickey Mouse when it came to vocational training, negotiation classes were about pure Disney as it got. Perhaps things have improved. Somehow I doubt it.

I think my point is this. As lawyers we operate in a world where the practices of the commercial world rarely intrude. And family law with it’s closed courts and impenetrable discretion is a little like Edo Japan before Commodore Perry arrived in the 1850s: maybe it’s time to think more objectively about what we’re doing when we negotiate – and while there is an understandable reluctance to take seriously pseudo-scientific mumbo jumbo about negotiation, maybe we should at least be open to thinking about it?

Alexander Chandler

23 July 2020

Categories
Comment

Will the new rules on open proposals actually work?

Family Procedure (Amendment) Rules 2020 (SI 2020/135)

This post covers two points (1) the new rules on open proposals and costs estimates, which took effect on 6 July 2020, and (2) are these likely to actually work?

THE NEW RULES

The amendments were announced on 10 February 2020 which, it is astonishing to realise, was only five months ago. The commencement date for most of the changes was 6 April 2020, save for four adjustments of the Part 9 financial remedy rules, which come into effect on 6 July; two are covered in this note.

The first major change is the introduction of FPR Pt. 9.27A:

Open Proposals 21 days after FDR (9.27A)

As of 6 July 2020, and following a FDR which doesn’t lead to settlement (or an adjourned FDR), the parties must (unless the court directs otherwise) exchange open proposals within 21 days of the FDR. Accordingly, if an FDR takes place on 27 July 2020 and the court gives directions to a final hearing (but does not deal specifically with open proposals), pursuant to r.9.27A, the parties must exchange open proposals by 17 August 2020.

This will be well in advance of the final hearing and before Section 25 statements have been exchanged.

If this is going to present difficulties in a given case, the parties should seek a direction from the FDR judge, pursuant to r.9.27A(1)(a), providing for different dates.

Alternatively, where there has been no FDR, an open proposal pursuant to r.9.27A(2) should be sent no less than 42 days before the final hearing (unless the court directs otherwise).

In addition to this new rule requiring open proposals shortly after the FDR (9.27A), the parties will also have to comply with FPR 9.28 which requires open proposals 7 or 14 days before the final hearing: Hence, parties who cannot settle face the curious requirement to serve two open proposals between FDR and final hearing.

Costs estimates (9.28)

According to Moore’s Law, computing power (expressed as the number of transistors in each microchip) doubles every two years. While the Family Procedure Rules are not expanding at quite that rate (yet), year on year they steadily increase in size and scope.

The latest change replaces the old FPR 9.27 (130 words) with a new, much more detailed, rule which is over four times as long (over 500 words). Previously the rule directed the parties to file a Form H before every (financial remedy) hearing and a Form H1 14 days before the final hearing.

The new provisions are set out below. The key differences are

(1) at First Appointment an estimate of costs up to FDR should be filed;

(2) at FDR an estimate of costs to final hearing should be filed;

(3) confirmation of service must be lodged,

(4) copies of the schedules ust be brought to court,

(5) the amount of the parties’ costs must be recited to the First Appointment and FDR order on of service must be lodged;

(6) failure to lodge a costs estimate must be recorded on the face of the order and redressed within three days:

“9.27.—(1) Except where paragraph (4) applies, not less than one day before every hearing or appointment, each party must file with the court and serve on each other party an estimate of the costs incurred by that party up to the date of that hearing or appointment.

(2) Not less than one day before the first appointment, each party must file with the court and serve on each other party an estimate of the costs that party expects to incur up to the FDR appointment if a settlement is not reached.

(3) Not less than one day before the FDR appointment, each party must file with the court and serve on each other party an estimate of the costs that party expects to incur up to the final hearing if a settlement is not reached.

(4) Not less than 14 days before the date fixed for the final hearing of an application for a financial remedy, each party (“the filing party”) must (unless the court directs otherwise) file with the court and serve on each other party a statement giving full particulars of all costs in respect of the proceedings which the filing party has incurred or expects to incur, to enable the court to take account of the parties’ liabilities for costs when deciding what order (if any) to make for a financial remedy.

(5) A costs estimate filed and served in accordance with paragraph (1), (2) or (3) and particulars of costs filed and served in accordance with paragraph (4) must include confirmation—

(a)that they have been served on each other party; and

(b)in the case of a party who is legally represented, that they have been discussed with the party on whose behalf they are provided.

(6) Each party must bring to a hearing or appointment a copy of any estimate of costs filed and served in accordance with paragraph (1), (2) or (3) and any particulars of costs filed and served in accordance with paragraph (4).

(7) The amount of—

(a)a costs estimate filed and served in accordance with paragraph (1), (2) or (3); and

(b)particulars of costs filed and served in accordance with paragraph (4),

must be recorded in a recital to the order made at the hearing or appointment before which the estimate or particulars were filed or served.

(8) If a party fails to comply with paragraph (1), (2), (3) or (4)—

(a)this fact must be recorded in a recital to the order made at the hearing or appointment before which the costs estimate or particulars of costs should have been filed and served; and

(b)the court must direct that the relevant costs estimate or particulars of costs must be filed with the court and served on each other party within three days of the hearing or appointment or within such other time period as the court directs.

(Rule 28.3 makes provision for orders for costs in financial remedy proceedings.)

(Practice Direction 9A makes provision for statements of truth to be included in estimates of costs and particulars of costs filed and served in accordance with this rule.)”.

WILL THEY ACTUALLY WORK?

The thinking behind requiring an earlier open proposal is that if parties can make privileged offers at FDR they should be able to make open ones shortly thereafter; and that this will encourage compromise and earlier settlement. The potential sanction for breaching this rule (e.g. failing to make an open proposal post-FDR or making a wholly unreasonable one) is set out at FPR PD28A § 4.4, which defines litigation misconduct which might resound in a costs order under FPR 28.3(6) to include that:

“…[t]he 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.”

As to how this will work in practice, how the requirement for parties to make two open proposals, will bed in, there are grounds to be sceptical.

(1) The existing rule for open proposals (FPR 9.28) makes perfect sense. It obliges the parties to set out what orders they seek 7/14 days before the final hearing, at which stage all the evidence is generally available. Accordingly the proposal will only be open for acceptance for a relatively short time, and it is invaluable to the tribunal to know what each party is seeking in advance of the hearing

(2) The rationale behind having a first open proposal post-FDR, and then a second before a final hearing becomes a bit fuzzy when one considers some practical questions:

  • For how long should the first open proposal remain available for acceptance without costs consequences? accepted? If it takes six months from FDR to final hearing (which may become standard post-Covid), can it be accepted two weeks before the final hearing, when the second open proposal is made, which (presumably) has the effect of replacing the first? Or should a first open proposal include a term that once a period for acceptance has passed (eg 21 days) that costs from that date onward would be payable? (cf. CPR Part 36.5)
  • Is it acceptable to make the same open proposal twice? Presumably so if the objective here is to encourage earlier open proposals?
  • What happens if a party increases his open proposal (from first to second open proposal), to seek a greater share of assets at the final hearing, e.g. to defray his additional legal costs? Is that prima facie unreasonable? Conversely, where a party party reduces his open proposal (to be more generous to the other party), is that a sign of reasonableness and compromise or a tacit admission that the first offer was too low?
  • Does litigation misconduct under PD28A § 4.4 mean beating your own open proposal (rare) or soundly beating the other’s proposal (more common)?
  • If it’s the latter, to what extent will a court follow the convention that open offers present a court with the two goalposts, rather than spotting where the ball is expected to land? Is it no longer ‘reasonable’ to pitch your open case toward the top or bottom of the bracket?

(3) The answer to the above will presumably be the usual family law fudge (i.e. it depends on the facts of the case). But where an application for costs is pursued based on a first open proposal, on what basis should the judge consider its reasonableness? Logically it could only be tested against:

  • The assets and liabilities that existed when the offer was made (and not as they turned out to be at trial)
  • The state of the case in terms of disclosure, deficiencies etc.

Does it therefore follow that where a costs argument is likely to be raised based on a post-FDR open proposal, that the parties now have to prepare a second schedules of assets, showing the values at that stage (in addition to the assets at the date of the hearing)?. How, otherwise, is a court meant to gauge the reasonableness of the first open proposal?

(4) What happens where a party follows a FDR (or private FDR) indication to the letter in his first open proposal, and the final hearing judge takes a different view? It seems grossly unfair not to be able to even raise that argument due to the confidentiality of the FDR. Would not at that stage (ie after the court has determined the case) the justification fall away for keeping that indication private, as a shield against a costs argument? Surely it could not be said that following a judge’s indication is ‘unreasonable’ even if the indication got the outcome of the case wrong?

(5) There’s nothing currently preventing a party making an early open proposal now. Indeed, this is smart thinking in many cases. However, the new rules make it obligatory. And why should a party be required to openly make an offer before all of the evidence is in, before updating valuations and addendum expert reports are in. Why must a party take a punt on future developments which may be material, in terms of updating disclosure or reviews into the value of a company? Parties in civil claims aren’t required to make open proposals between the close of pleadings and witness statements. And under the new rule, in many cases parties will be expected to make open proposals before exchange of Section 25 statements, updating information and any updating expert reports;

(6) The effect of the new rule is that parties are required to engage in something like game theory: do I play safe and go high in my first open proposal, even though this may store up trouble for the future (if I’m way off beam at a final hearing, and the other side may opportunistically apply for costs). Or do I pitch low even though this may be under-playing my hand in terms of the litigation and I may settle on the cheap, before further investigations are made.

I’ll make a prediction. This new rules will have the unintended effect of giving parties ammunition to run dubious costs arguments at the end of final hearings.

The problem is uncertainty. The civil costs rules because they are clear and predictable (‘losing party pays the winning party’s costs’). The Calderbank rule, while more complicated, is based on an objective test: have you beaten your own offer?.

The ultimate test in the new rules is ‘reasonableness’, which is sufficiently subjective and broad to arise in many cases. (Or at least it could be arguable at the end of a case, which amounts to the same thing). And this might involve involve a judge who has just handed down judgment on the merits having to wrestle with questions such as: the reasonableness of the offer at the time it was offered? does there need to be a causal link between the unreasonable open offer and the case proceeding to final hearing? will the court have to engage in speculation as to what might have happened if a reasonable offer had been made? If the case was likely to proceed to final hearing in any event, what is the loss and how should a costs order be quantified? Should the court pluck a figure out of the air as a penalty?

The intention behind the new rules is laudable. But the unintended consequence may be quite different: an increased number of costs applications based not on an objective fact (I have beaten my offer) but complicated and subjective submissions as to the reasonableness of historic open proposals.

One suspects the court will be generally inclined to make no order as to costs.

Alexander Chandler

8 July 2020

Categories
Procedure

Skeletons, Position Statements & Notes

There comes a point in life when you turn on the radio and think ‘this isn’t music; it’s just noise’. Or somebody says less pages instead of fewer and you inaudibly tut.

The law provides endless opportunities for this creeping pedantry, as you gradually turn into your own parent. My personal favourite is pointing out that there’s no such thing as a First Directions Appointment (FDA). And there isn’t. Look at the FPR 9.15: it’s called a “First Appointment”. There are no references in the rules to First Directions Appointments or FDAs. Eternal shame on Resolution for publishing a ”Guide to the First Directions Appointment”.

Does this matter? Well, there aren’t many cases which turn on whether you’ve mistakenly put the word ‘directions’ into a chronology. But then again, if we’re being honest with ourselves, every lawyer gets a small sense of satisfaction from being right, or from using the correct term. There are few careers more focused on deploying le mot juste. Where it can take years to live down the mistake of addressing a district judge as mum instead of ma‘am, where entire TOLATA claims go awry for confusing promissory estoppel with proprietary estoppel.

For this post, the pedantry du jour is what rules apply to written submissions and what should they be called? In financial remedy hearings these are described variously as Position Statement, Case Summary, Note, Skeleton Argument or Written Case. Invariably they all are all substantively the same: a gumbo of narrative background, legal citation, analysis of the issues (occasionally) with a soupçon of having a really good moan about the other side.

So what actually is the difference between a position statement and a case summary? This involves a detailed consideration of FPR Practice Direction 27A, (which I shall refer to, inaccurately, as the Bundles Direction.)

“Case Summary”

PD27A requires the court bundle to contain preliminary documents, including “…an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if possible, to four A4 pages” (§ 4.3(a)), but no longer (“unless the court has specifically directed”) than six pages (§ 5.2A.1).

An interesting comparison can be found at CPR PD 29A § 5.7 which provides that in civil proceedings, at a multi-track CMC, the case summary should not exceed 500 words.

Why, one wonders, do family litigants get up to six pages (roughly 2,250 words if 1 1/2 spaced) where civil litigants have to do it in about a quarter of the space? Are family cases inherently more complicated than civil claims? Or do family lawyers have less time to make their documents shorter? Maybe this is just another example of things happening differently and more loosely in family cases (see e.g. rules of evidence).?

So, a ‘case summary’ should explain the background to a case relevant to the specific hearing in no more than 4-6 pages.

“Position Statement”

Distinct from a case summary is a position statement which should include “a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing” (§ 4.3(c)). Again, unless the court has directed otherwise, this should be a maximum of three pages long (§ 5.2A.1).

However, the recent ‘FPR Good Practice Protocol’ (November 2019), which provides that in most cases questionnaires should be no longer than four pages (GPP § 13), states that (without derogating from the Bundles Direction) it is ‘good practice’ that a position statement including schedules should not cover more than 5 pages for a First Appointment, 10 pages for an FDR and 15 pages for a final hearing. Plainly this does not contemplate a 10 page position statement in addition to a case summary etc – it would appear that the framers of the GPP have a different interpretation of a ‘position statement’ than appears in the Bundles Direction;

“Skeleton Argument”

Unlike a case summary and a position statement, the rules do not require a skeleton argument. It should only be filed “if appropriate” (§ 4.3). A skeleton should be no longer than twenty pages (§5.2A(1)). However if the case is proceeding before a High Court judge, in which pursuant to Mostyn J’s ‘Statement on the Efficient Conduct...”, in which case there are specific provisions of para. 15 of that guidance which should be followed including that the page count should not exceed (respectively) 10, 15 and 20 pages for a First Appointment, FDR and final hearing without extensive quotation from the authorities;

By contrast, in civil procedure, the presumption of whether to file a skeleton argument is the other way around: skeleton arguments should be filed where the case is before a judge unless the hearing does not warrant one (see, e.g. Chancery Guide § 21.73), and will “almost invariably be essential” at a case management directions hearing (Chancery Guide § 17.20). Interestingly, this applies a broader interpretation to what constitutes a skeleton, i.e. “…a list of the persons involved in the facts of the case, a chronology and a list of issues will also be required… to be agreed where possible” (Chancery Guide § 21.75)

Skeletons for appeals in the family court (up to High Court level) are covered in FPR PD30A para 5.13 to 5.22 which contain the guidance that:

5.18 A skeleton argument must state, in respect of each authority cited –

(a) the proposition of law that the authority demonstrates; and

(b) the parts of the authority (identified by page or paragraph references) that support the proposition.

5.19 If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state the reason for taking that course.5.20 The statement referred to in paragraph 5.19 should not materially add to the length of the skeleton argument but should be sufficient to demonstrate, in the context of the argument –

(a) the relevance of the authority or authorities to that argument; and

(b) that the citation is necessary for a proper presentation of that argument.

The contents of a skeleton appeal prepared for an appeal to the Court of Appeal must comply with CPR PD 52A, Section V, and in particular the following:

(1) The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.

(2) A skeleton argument must–

– be concise;

– both define and confine the areas of controversy;

– be set out in numbered paragraphs;

– be cross-referenced to any relevant document in the bundle;

– be self-contained and not incorporate by reference material from previous skeleton arguments;

– not include extensive quotations from documents or authorities.

Schedule of assets

Curiously, the Bundles Direction contains no requirement to file the single most important document in any financial remedies case: a schedule of assets, or the second most important; a net effect calculation. There is a (generally overlooked) suggestion at FPR PD9A § 4.1 that the parties should “if possible” lodge an agreed schedule of assets, agreed summary and draft directions, before a First Appointment. But there is no equivalent provision before an FDR or final hearing. The Good Practice Protocol invites opposing advocates ‘wherever possible’ to work together to produce a “single (if possible agreed) assets schedule” (§ 14).

In practice it is extremely risky to attend an FDR or final hearing without a schedule (although this does still happen, even with seasoned representatives). There is similarly no guidance in the rules as to the format of a schedule: this has led to two broad schools of thought: the ‘Third Columnists‘ (Jt, H, W) vs ‘Second Columnists‘ (W, H, joint assets divided equally). For what it’s worth, I am a committed Third Columnist.

But, does anyone actually follow the Bundles Direction?

Strict compliance with the Bundles Direction § 4.3 would involve seven separate documents appearing at the front of the bundle for every hearing: (1) a case summary, (2) statement of issues, (3) position statement, (4) chronology, (5) skeleton (optional), (6) list of reading, (7) time estimate, which should comply with the strictures of § 10.1, ie

“(a) specify separately: (i) the time estimated to be required for judicial pre-reading; and (ii) the time required for hearing all evidence and submissions; and (iii) the time estimated to be required for preparing and delivering judgment”

This excludes the further three documents which the parties are encouraged to file before First Appointment (FPR PD9A §4.1) – making in theory a running total of ten.

However, §4.6 provides that “a final hearing, and shall so far as practicable in the case of any other hearing”, the first four documents may be consolidated into a single document – although this should be agreed, with any disagreements identified.

All of the above should be as “short and succinct as possible” (§4.4), cross referenced against the paginated bundle (§4.4) and where possible agreed in a single document with disagreements marked (§4.5)

In reality

In this age of micromanagement, where the Bundles Direction descends to the detail of prescribed font size and line spacing (§5.2), it’s noteworthy that no one actually follows the provisions of the Bundles Direction to the letter in money cases. It may be that in other areas (public law children for example) it makes more sense to have such a multiplicity of documents.

As noted above, what happens in financial remedies is that each party’s advocate lodges a single (and not agreed) document, comprising a mixture of factual background, sardonic asides, law and sometimes analysis (see earlier post, “The Ten Commandments of Financial Remedy Notes”).

And the Bundles Direction doesn’t really cater for this, in terms of how long such a composite document should be, or even what it should be called. The Good Practice Protocol comes closer to recognising reality in its provisions relating to Position Statements (see above).

So I will offer my own, unauthortative thoughts:

1. When filing a composite document it is probably better to avoid terms such as Case Summary or Skeleton, which have defined meanings in the Bundles Direction;

2. The term “Note” is probably fine (if a little undersold), as is “Position Statement” (even though that has its own precise meaning in the Bundles Direction, cf. Good Practice Protocol). For those with grander aspirations, the term “Written Case” (which is used when filing documents at the Supreme Court) also works

3. The page limits in the amendments to the Bundles Direction are if anything conterproductive: § 5.2A.1 allows a total of 42 pages for the preliminary documents (excluding the time limit/ trial timetable). That is like setting the speed limit at 180 mph on the motorway.

4. In terms of length, and I cannot emphasise this too strongly, shorter is better. Judges do not have the time to read through a 30 page magnum opus in a busy list. The almost universal experience which comes from sitting as a judge or arbitrator is err on the side of brevity – see the FLJ Guide to the FDR § 19

5. Always lodge a schedule of assets and (at FDR or final hearing) a net effect schedule.

6. When you have the time, lodge draft directions / a draft order.

7. Finally, with the current Covid crisis in mind, do not overlook the following provisions contained in the Good Practice Protocol: where documents are lodged by email the time limit is 2pm the day before (GPP § 14, cf. 11am in the Bundles Direction), and the Financial Remedies Court (even pre-covid) encouraged submission by email so that the hearing can be paperless.

Alexander Chandler

2 July 2020

Categories
Law

What is an authority?

To what extent do we apply precedent in financial remedies? Now that cases are routinely ‘reported’ on Bailii, what even counts as precedent? Can a case be cited even though it isn’t in the Official Reports or the Family Law Reports? Is there any difference nowadays between an ‘authority’ and what amounts to no more than an example of a judge’s decision in a given case on different facts?

Precedent and Family Law

As any law student knows, England and Wales has a common law legal system. Central to this is the concept of precedent, under which decisions of the higher courts are binding on the lower courts. In Willers v Joyce (re Gubay) [2016] UKSC 44, Lord Neuberger summarised the doctrine of precedent as follows:

” [4] In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability”

To what extent does this apply in family law (and more particularly, financial remedies) where the law is discretionary and a more flexible approach is taken to precedent? In B v B (Ancillary Relief) [2008] EWCA Civ 284, Wall LJ reflected that

[54] … the essence of any judicial discretion lies in its application to particular facts, and since each case requires its own particular resolution, the concept of fairness becomes, essentially a matter of judgment. In this context I am reminded of the wise words of Ormrod LJ, in Martin (BH) v Martin (D) [1978] Fam 12… spoken more than 30 years ago on 10 March 1977, but still, in my judgment, as applicable today as when they were first uttered:

‘…It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the Act of 1973, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion. If property suddenly became available all over the country many of the rationes decidendi of the past would be quite inappropriate.’

Authorities v Examples

What this often leads to is a Cole Porter approach to the citation of case law: anything goes. Where equal weight is attached to a decision of (say) Mr Justice Mostyn as the Court of Appeal (or higher), or where any decision is relied upon, regardless of whether it is in any way authoritative (i.e. setting out new law or summarising existing principles).

Bailii is a tremendous resource, which freely makes available a huge corpus of case law. However, one downside of the availability of e even mundane High Court decisions (where even a decision to adjourn is ‘reported’) leads us to chaos where law cited in scattergun approach. A distinction is rarely drawn between a case which sets out to develop or condense the law

So, are there any rules? And if so, what are they?

The pyramid

At the risk of what Basil Fawlty would describe as stating the bleeding obvious, at the apex of the judicial pyramid is the Supreme Court, then the Court of Appeal, High Court, circuit judge, district judge and finally magistrates.

Mrs Justice Baron, whose early death was a tragedy as much for the Family Division as it was a personal one, put it best at first instance in Radmacher. (Some would argue that her decision in Radmacher was a good deal fairer than the outcome finally achieved in the Supreme Court, but that falls outside the compass of this blog). In Radmacher (which at first instance was anonymised as NG v KR [2008] EWHC 1532 (Fam), Baron J commented:

[82] At the outset I remind myself that I decide this case in accordance with English Law and tradition. In terms of financial relief upon divorce I am bound by the terms of the Matrimonial Causes Act 1973 (“the Act”) as it has been interpreted in the House of Lords and the Court of Appeal. Decisions of my fellow 1st Instance judges may also be persuasive and/or illuminating. Under statute my first consideration is the two children of the family whilst they are minors. I must also take account of all the circumstances of the case and the factors set out in Section 25 of the Act to produce a result which is fair, just and does not discriminate against either party on the grounds of gender or for any other reason. Although fairness has been stated to be in the “eye of the beholder” and I am conscious that I must apply the Law carefully and clearly.

Accordingly, a High Court judge must yield to the Court of Appeal or Supreme Court (which The House of Lords morphed into on 30 July 2009) unless the decision of the higher court was reached through not being properly appraised of the law (i.e. per incuriam, see Mostyn J in UL v BK [2013] EWHC 1735 (Fam) at § 27-29)

What is citable as an authority?

The key Practice Direction which is often overlooked in the family court is the Practice Direction of 9 April 2001: Citation of Authorities. For reasons best known to the law reports, this appears in the Weekly Law Reports (the enjoyably binary [2001] 1 WLR 1001) but not in the Family Law Reports.

While this is directed to civil cases, there is no question that it also applies to the family court, as made clear in a recent amendment to the FPR Practice Direction 27A (emphasis added)

[4.3A.2] Attention is drawn to paragraph 6 of Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 and to Practice Direction (Citation of Authorities) [2012] 1 WLR 780 (both set out in The Family Court Practice) which must be complied with. The reference to “county court cases” in para 6.1 of the first practice direction should be read as including family court cases decided by a judge other than a judge of High Court judge level. Therefore, a judgment on an application attended by one party only, or on an application for permission to appeal, or that only decides that the application is arguable, or by the county court, or in the family court of a judge other than a judge of High Court judge level, may not be cited or included in the bundle of authorities unless either (i) the judgment clearly indicates that it purports to establish a new principle or to extend the present law or (ii) the court for good reason has specifically directed otherwise.

What cannot be cited:

The key provisions of the 2001 guidance are set out from § 6. In particular, § 6.2 provides that the following cannot be cited as authority “…unless it clearly indicates that it purports to establish a new principle or to extend the present law… that indication must take the form of an express statement to that effect.”

  • “Applications attended by one party only;
  • Applications for permission to appeal;
  • Decisions on applications that only decide that the application is arguable;
  • county court cases [extended to CJ and DJ decisions in the county court] unless: (b) cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available.”

Does the judgment purport to create new law?

7.1 Courts will in future pay particular attention, when it is sought to cite other categories of judgment, to any indication given by the court delivering the judgment that it was seen by that court as only applying decided law to the facts of the particular case; or otherwise as not extending or adding to the existing law.

7.2 Advocates who seek to cite a judgment that contains indications of the type referred to in paragraph 7.1 will be required to justify their decision to cite the case.

State your proposition

[8.1] Advocates will in future be required to state, in respect of each authority that they wish to cite, the proposition of law that the authority demonstrates, and the parts of the judgment that support that proposition. If it is sought to cite more than one authority in support of a given proposition, advocates must state the reason for taking that course.

8.4 The statements referred to in paragraph 8.1 should not materially add to the length of submissions or of skeleton arguments, but should be sufficient to demonstrate, in the context of the advocate’s argument, the relevance of the authority or authorities to that argument and that the citation is necessary for a proper presentation of that argument.

Accordingly, applications for permission to appeal are not citeable. Decisions of a CJ or DJ are not citeable unless they arise in relation to an issue in respect of which no authority of a higher level is available. For the best, most flagrant breach of this Practice Direction, look no further than the “authority” of the “meal ticket for life” case of Wright v Wright [2015] EWCA Civ 201 which in truth was authority for nothing at all.

Alexander Chandler, 28 June 2020

Categories
Comment

Ten Commandments of Financial Remedy Notes

1. Minimum 40 paragraphs for a First Appointment; 90 for a FDR;

2. Tone should never deviate from rant. Work those adjectives – there is no such thing as delay, only disgraceful delay;

3. Figures on the schedule should read like the bottom line of a sight test: practically invisible to the human eye;

4. When it comes to adding colours, the more the merrier. Make your schedule look like a TV test card;

5. Your client is a modern saint. The other side is engaged in a criminal conspiracy;

6. Always confuse gross and net incomes. Gross for other side: net for your own;

7. Never cite one case when eight will do;

8. Property particulars: out of budget and off the market;

9. Never identity the issue until paragraph 60. Then disguise it;

10. No matter hopeless your case, always threaten costs.

Categories
Comment

Sauce for the Goose: A primer on legal clichés

It is a truth universally acknowledged that no financial remedy hearing can properly conclude until one advocate has declaimed “…the wife must cut her coat accordingly”, or how “…sauce for the goose is sauce for the gander”, or “going forward”, the husband “…having made his bed must lie in it”.

In Politics and the English Language (1946), George Orwell wrote: “As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse”.

One imagines Orwell sitting alongside a judge hearing a First Appointment or FDR, squirming while submissions are made.

This article is not intended as a pious sermon against clichés – not least because the writer is in no way qualified to give such advice. It is a consideration of five of the more unusual sayings that have become commonplace, to the extent that they are frequently cited in court as though they have quasi-legal authority: “Q. Why is this property suitable?” “A. The wife must cut her coat accordingly”.

Stacking shelves at Tesco

It’s not clear who first coined the cliché “stacking shelves at Tesco”, or why that supermarket was mentioned. ‘Stacking shelves at Sainsbury’s’ works just as well, but maybe the point is that the brand values of Sainsbury’s have always been a bit aspirational whereas Tesco represents value and honest hard work. Hence, entrepreneurs on Desert Island Discs boast about having started out stacking shelves at Tesco, because this establishes their no-nonsense origins and their can-do graft.

In court, asking a wife if she’d be willing to stack shelves at Tesco, is the equivalent of calling magistrates “Your worships”: the mark of inexperience. It’s normally also a low point in the hearing. Not because it isn’t arguable, but because it effectively says “I now realise I’ve forgotten to present evidence on earning capacity, or take instructions, but this way I’ll at least get the ball back over the net”. Alternatively, it’s the answer frequently given from the witness box to “What do you say your ex-wife should do”; followed by the judge putting on a pained expression and the other advocate loudly harrumphing.

Sauce for goose is sauce for gander

The point is a simple one: “what is fitting for the husband should also be fitting for the wife” (acc. Brewser’s Dictionary of Phrase & Fable). Hence, if the husband has made provision in his schedule of outgoings for £6,000 on holidays, why should not the wife have a similar allowance?.

Quite how this expression has become so embedded in family law parlance is unclear, particularly as sauced goose is rarely eaten, even in the Inns of Court. The expression dates back at least to Tudor England, when in 1562 John Heywood included “…deep drinketh the goose as the gander” in his book of proverbs. In his book The English Rogue (1674) the Irish writer, Richard Head, wrote “…sawce which is good for the Goose, I hope will be good for the Gander”.

Expressed judicially, the epigram can be found in several reported judgments, including the Court of Appeal in the partnership case of Morris v Wentworth-Stanley [1999] 1 FLR 83, per Potter LJ at 93, in Phippen v Palmers [2002] 2 FLR 415 per Heather Swindells and F v F (Pre-Nuptial Agreement) [2010] 1 FLR 1743 per King J (as she then was). Most recently, in Re D (A Child) (Supreme Court Jurisdiction) [2016] 2 FLR 379, Baroness Hale commented that, in the context of the 1968 Brussels Convention, “…what is sauce for the goose must also be sauce for the gander” (para [20]).

Cutting one’s coat according to one’s cloth

Unlike television’s “QI”, a klaxon does not go off in court when an advocate says something obviously trite about cutting one’s cloth. Although it should. The underlying point is an obvious one: in adapting to changed circumstances, savings will have to be made in relation to items such as housing need or outgoings.  

The phrase relates to the practice of purchasing cloth from which garments such as coats are to be cut out. It can be found in Heywood’s 1594 proverbs: “I shall cut my cote [sic] after my cloth when I have her”. Also, in John Dryden’s “Wild Gallant”: “I love your wit well, sir; but I must cut my coat according to my cloth.”

Judicially, it appears in the judgment of Mrs Justice Macur in M v W (Ancillary Relief) [2010] 2 FLR 1484 at [50], Potter P in MD v D [2009] 1 FLR 810 at [56], and TL v ML and  Others (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263 at para [112] where Nicholas Mostyn QC (then sitting as a deputy high court judge) noted that the wife will “…have to cut her coat in accordance with EUR 544,000 worth of cloth”.

Meal ticket for life

A periodical payments order made without a term is generally described by lawyers as “joint lives maintenance” and by the Press as a “meal ticket for life”; particularly in relation to “landmark” cases such as Wright v Wright [2015] EWCA Civ 201 which turn out to have little, if any, legal significance. The case of Wright, an application for permission to appeal, is authority for precisely nothing (see Practice Direction 9 April 2001 [2001] 1 WLR 1001, para 6.2).

Few people, aside from those who received Luncheon Vouchers (between 1946 and their abolition in 2013), will have seen a meal ticket. The term, in the literal sense of a ticket admitting to a dining hall dates to the nineteenth century. In the figurative sense, in terms of financial dependency, it dates back to the turn of the twentieth century.The expression was used by Lord Justice Purchase in Scallon v Scallon [1990] 1 FLR 194 at 201: “I wish to say a word about ‘clean break’ which is a phrase which arises since the amendments to the 1973 Act were introduced to ensure that, where there were short-term marriages, one party should not get what is described as ‘a meal ticket for life’ upon the dissolution of such a marriage”. It appears also in Lord Justice Ward’s judgment in C v C (Financial Relief: Short Marriage) [1997] 2 FLR 26 at 46 and in MD v D (supra) at para [41].

Copper bottomed assets and the plum duff

In the seminal case of Wells v Wells [2002] 2 FLR 97, Lord Justice Thorpe commented that, where there is to be a clean break, and the family assets include both available and illiquid assets, that there should be a fair sharing “…by a fair division of both the copper-bottomed assets and the illiquid and risk-laden assets” (para [24]). The expression can also be found, per Mr Justice Coleridge, in the case of Smith v Smith [2007] 2 FLR 1103 at para [30].

The concept of “Wells sharing” was expanded by Mr Justice Mostyn in FZ v SZ and Others (Ancillary Relief: Conduct: Valuations) [2011] 1 FLR 64 in which the earlier decision in GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108 is cited; at para [64] “…It therefore follows that a Wells  sharing is the only way of achieving fairness. Indeed, it would seem to me that this should become standard fare where a case has a significant element of deferred or risk-laden assets. For why should one party receive most of the plums leaving the other with most of the duff?”

“Copper bottomed” refers to the eighteenth century practice of fitting copper on the underside of hulls, to protect ship from shipworms and infestation by barnacles, and has come to mean reliable. Plum duff is a variety of Christmas pudding; specifically, duff is a steamed flour pudding. 

Marital acquest

Finally, by way of contrast, the joker in the pack: “acquest”; a term of art, unknown out of its legal context, which has gained extraordinary traction in family law over the past 14 years.

The first reference to this term in an English family law report was by Nicholas Mostyn QC (sitting, as he then was, as a deputy high court judge) in the case of GW v RW (supra) at para [38]: “…I have stated above that in the Court of Appeal in Lambert v Lambert[2003] 1 FLR 139 reliance was placed on the practice of the New York courts of dividing the marital acquest equally after a marriage of long duration. The statute there is similar to ours, save that the court’s dispositive powers are confined strictly to ‘marital property’”.

The term (which does not appear in Lambert) derives from the definition of community property in the French Civil Code, article 1401 (“…des acquêts faits par les époux  ensemble ou séparément durant le marriage”). Some European countries such as France operate a “community of acquests” civil property regime whereby property acquired by inheritance or gift is excluded from joint ownership (Law Commission Paper 198, para 4.7).

The term has taken root, largely as a result of cases in which Nicholas Mostyn QC appeared as counsel (Miller; McFarlane; McCartney v Mills McCartney) or sat in a judicial capacity (GW v RW, Rossi), to describe assets built up during the marriage save by inheritance and gift. Otherwise, the word has fallen out of usage.

Conclusion

No advocate, however eloquent, can avoid using clichés altogether. However, we would all do well by resisting the temptation to resort to such easy, hackneyed phrases as “sauce for the goose”, “cutting one’s coat/ cloth” or “meal ticket”.

In Politics and the English Language Orwell proposed six rules which, if anything, apply more forcefully now than they did 70 years ago:

  1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print;
  2. Never use a long word where a short one will do;
  3. If it is possible to cut a word out, always cut it out;
  4. Never use the passive where you can use the active;
  5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent; and
  6. Break any of these rules sooner than say anything outright barbarous.
Categories
Procedure

The Road Ahead (Shortened)

President’s Guidance on Covid and the Family Court

The Guardian used to have a feature in its Saturday magazine: the Digested Read. This would involve John Crace summarising a book in about 700 words, and then (in “the Digested Digested Read”) condensing that summary into one or two words, like the final round of the hat game. “The Mandibles”, Lionel Shriver’s 800 page futuristic novel about the USA: Digested Digested Read = “The Unreadables”.

This blog is a Digested Read of “The Road Ahead: The Family Court and Covid 19”, a route map from the President of the Family Division, Sir Andrew McFarlane P, setting out how the family court will operate in the next six months or so. (Answers on a postcard as to what font McFarlane P is using: I’ve never seen it before)

“The Road Ahead” follows compendious guidance from:

In “The Road Ahead”, McFarlane P acknowledges that we are, in effect, all directed out:

“§16 The overwhelming view of the judiciary and legal profession is that the Family Court does not need any further directive or proscriptive guidance on case management at this time… I agree with this overwhelming view” 

So, in the absence of further directive or prospective guidance (with one exception: see § 17 of The Road Ahead re: joint letter to the judiciary) , what are the takeaway points from The Road Ahead?

  1. In terms of social distancing restrictions etc it is clear that we are all in for the long haul: “…likely to remain for many months to come” (§ 1)… “…it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021” (§ 5, emphasis added);
  2. This elongation of the timescale for a return to normality must now be reflected in case management decisions. The need to achieve finality in family cases, and the detrimental effect of delay “…must form important elements in judicial decision making alongside the need for fairness to all parties” (§ 6). In other words, the courts should be less willing to adjourn cases since an adjournment will likely involve inordinate delay;
  3. The backlog of cases, already significant before March 2020, means that the court must face a new “reality” that “for a sustained period” a high volume of cases must be determined in a fair, just and timely way “in sub-optimal court settings” (§ 9);
  4. This is particularly acute in children cases where “…the need to avoid delay will always be a most important factor and may be determinative in many cases” (§ 12);
  5. The family court will be moving from working remotely to hybrid hearings (where some participants attend court and the others engage remotely) and, increasingly, attended hearings;
  6. The court buildings are due to reopen over June and July, on a reduced capacity basis (i.e. following risk assessments, only a limited number of courtrooms will be considered appropriate for attended, social distanced hearings, with a limit on the number of attendees in each courtroom etc) (§§ 19,20);
  7. The call on these courtrooms will be significant (from across the board) and enquiries may be made about the availability of space outside the court estate such as conference rooms (§ 21);
  8. In terms of video conferencing, Cloud Video (CVP) is favoured by HMCTS and is being prepared for widespread use across the jurisdictions. Microsoft Teams is available for use by many judges; Zoom is not. (§ 23)
  9. The following “very firm steer” is provided:

a. In terms of remoteness, a remote hearing over the telephone is the most remote option other than a paper or an email based process.
b. Telephone hearings may be well suited to short case management or review hearings, they are unlikely to be suitable for any hearings where evidence is to be given or where the hearing is otherwise of substance.
c. Where a suitable video platform is an available and viable option, video, rather than telephone, should be used for the conduct of a remote hearing.
d. It is not a good use of a judge’s time for the judge to be responsible for dialling in each participant for a BT Meet Me hearing. HMCTS has accepted that the task ought to be undertaken by staff and they are working hard to achieve this in all courts.
e. Experience has shown that BT Meet Me Dolby Plug-In (which channels the phone call through the judicial computer) is preferable to the basic BT Meet Me service and it should be used where available when a hearing is to take place over the telephone.
f. The two video platforms currently supported by HMCTS are Skype and CVP; of these two CVP is more effective than Skype and should be used where it is available

10. Perhaps the most significant part of ‘The Road Ahead’ relates to case management

§ 43 If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear. 

11. Between §§44 and 46, McFarlane P notes:

§ 44 Clear, focussed and very robust management of cases will be vital in the coming months. The case management judge will have the difficult role of balancing the welfare of the child, the need for a fair and just process and the limited resources of space, time and format with the need to conclude the proceedings. 

§ 45. Adjourning the case to await a full face-to-face hearing is unlikely to be an option. The court must identify those issues and applications that need to be heard and then move on to determine them. 

§ 46. Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court. 

§ 48 In keeping with the overriding objective and the elements highlighted in paragraph 47, judges should (after canvassing the point with the parties) consider whether giving a short judgment will be sufficient and proportionate in any particular case. In a short judgment the court will not be expected to set out a detailed recital of the evidence, save for those key elements which support the court’s findings and decision. There should not, however, be any reduction in the content and scope of the judge’s description of their analysis and reasoning. 

12. With the objective of encouraging stricter case management, the court sets out a lengthy ‘COVID Case Management Checklist’, (A) narrowing the issues, (B) regarding the Hearing Format and (C) optimising the fairness of remote hearings. All of which should be read in detail in advance of a directions hearing.

The digested, digested read? “Carry on regardless”

Alexander Chandler, 9 June 2020

Categories
Comment

Under the bonnet of the Daily Mail Law Reports

RM v TM [2020] EWFC 41, Robert Peel QC (DHCJ)

There’s nothing the Daily Mail likes quite as much as reporting a divorce case with judicial condemnations of costs which are “eye-watering”, “astonishing” or “absolutely barmy”.

The ideal Daily Mail Law Report (‘DMLR’) involves divorcing parties who have litigated themselves into penury, preferably illustrated by an urbane (and classically inspired) quote from the judge, e.g. Kavanagh v Kavanagh (unreported, save at DMLR [2012] 19 September), where DJ Million described the parties’:

“…wrecking the ship of their marriage then turning their attention to the lifeboats”. … The ship of marriage may founder but this couple have driven theirs full tilt onto the rocks.”

On 5 June 2020, the DMLR once again struck gold.

Under the headline “The couple who spent £600,000 squabbling for two years over their divorce are left with just £5,000 each after legal costs“, the case of RM v TM was “reported”, with several juicy quotes from the trial judge, Robert Peel QC (sitting as a Deputy High Court judge), including that:

“There may be worse examples of disproportionate and ill-judged litigation – but none spring readily to mind.”

“It is hard to express what a calamitous waste of resources this has been.”

Unusually, the Daily Mail’s version was published at the same time as a Bailii report of the actual judgment, at [2020] EWFC 41, so it is possible to cross-reference the two, to provide some legal analysis to this extremely sad case, and to understand how intelligent people instructing specialist legal teams can end up with an outcome like this.

The judgment is not an especially long one, but for the purpose of this blog (and with apologies for numbering each point), it is possible to extract the following relevant background:

  1. At the heart of this case was a dispute over two family companies in which W held a minority 24% shareholding, but otherwise had no involvement (‘…a sleeping partner… uninvolved at strategic and operational level’ (§ 7));
  2. From 2005 until the July 2018, H was employed as Managing Director of one of the companies. He resigned amid allegations about his conduct as MD which led at one stage to his arrest for alleged malfeasance: “…the dispute between the company (and thereby W’s family) and H rapidly spilled over into the divorce and became a proxy war in the Family Court” (§ 12);
  3. The financial proceedings began in September 2018. From the outset, this was high octane litigation: H applied (unsuccessfully) for an interim order for sale of the family home, interim maintenance (“maintenance pending suit”) and a legal services payment order. When the parties exchanged their financial statements (“Forms E”) H contended W’s business interests (i.e. 24% of the two family companies) were worth £2m; W asserted they were worthless;
  4. H applied for an expert to value W’s shares. Fatefully, this application was refused (per “§ 19 With the benefit of hindsight, in my view an expert report should have been directed. The parties were at least £2m apart as to the value of W’s shareholding. Liquidity was an issue. Even if non-marital (which was disputed), the illiquid capital was potentially a resource to take into account. The court must consider the whole picture; it is hard to see how the case could have been fairly determined without this evidence.).
  5. H appealed the decision not to allow expert evidence (which was refused on paper) and then appealed again.
  6. Meanwhile the parties locked horns on whether these shares were in any event marital (W contended that, as they had been gifted to her by her parents, they were non-matrimonial; H asserted they were marital and shareable; W said in which case she could (“as a shield not a sword”) raise allegations of H’s misconduct); they also engaged in issues relating to alleged misappropriation of monies due to the children;
  7. At a pre-trial review, the court belatedly ordered an expert to value the shares, and purported to restrict the specific issues of misconduct (excluding allegations of H’s alleged malfeasance)
  8. The final hearing (2-6 September 2019) overran. Indeed only W’s case was heard in those five days. The court directed a further hearing in November 2019 and controversially allowed further inquiry into H’s alleged financial misconduct (this went beyond the PTR recital of the ‘conduct’ issues). H invited the judge to recuse himself (refused), and then appealed this non-recusal and the direction for further inquiry;
  9. Mr Justice Mostyn granted H permission to appeal, which was listed before Mr Justice Moor on 24 January 2020 (causing a postponement to the November hearing). Moor J allowed H’s appeal against the judge’s handling of the hearing but refused the recusal appeal: the hearing was remitted back for final hearing before a different judge. Moor J directed that if W intended to rely on conduct it must be specifically pleaded.
  10. H was dissatisfied by Moor J’s direction that allowed W to enlarge her ‘conduct’ argument, or the recusal decision, and appealed to the Court of Appeal (who refused permission). An FDR took place before Cohen J and a fresh 5-day final hearing was listed before Robert Peel QC (DHCJ).

At this point, it is worthwhile drawing breath and noting how litigation can get out hand. This was not a case where one party was always in the wrong. H’s application to instruct an expert was initially refused but ultimately succeeded. His appeal against the original trial judge’s handling of the September final hearing was successful (albeit not on every ground). Against that, there were numerous applications and hearings – 13 in total – where H was not successful.

However the parties’ costs, funded by litigation loans, rose inexorably so that by the final hearing in May 2020 the “only asset of significance is the proceeds of the FMH [former matrimonial home] of which £630,000 remains” and the parties costs amounted to £214k (W) and £251k (H) – excluding other liabilities. In addition, W held her shares (which the court valued on a ‘quasi-partnership’ basis, i.e. without discount, at £320k), H had pensions worth £500,000 and W had pensions worth £229,000.

Outcome and two legal points

The court’s decision was that the proceeds of sale of the FMH should be divided £337k to H and £220k to W. Net of costs, this would leave H with £5,423 and W with £5,368. This would enable H to rehouse for £250k using his mortgage capacity of £128k and £125k he could commute from his pension (§ 80). W had a mortgage capacity of £132k but the court was satisfied that her family would assist to buy suitable accommodation, and proceeded on the judicious encouragement/ Thomas v Thomas basis (§ 81).

Two points of legal interest may be noted:

(a) Stretching resources

Firstly, the court cited with approval the time honoured guidance of Thorpe LJ in M v B [1998] 1 FLR 53 (paramount consideration of ‘stretching resources’ to meet both parties housing needs where possible’) but commented:

[76] In Piglowska v. Piglowski [1999] UKHL 27Lord Hoffmann, commenting on M v B, said: “This is a useful guideline to judges dealing with cases of a similar kind. But to cite the case as if it laid down some rule that both spouses invariably have a right to purchased accommodation is a misuse of authority.” Although not an iron rule, to my mind the dicta in M v B apply self-evidently in the majority of cases, and certainly in this one.

(b) Judicious encouragement

The court reviewed the law on judicious encouragement (i.e. seeking to persuade W’s family to provide financial support) and applied the following principles:

(i) The starting point is that there is absolutely no obligation on a third-party family member to provide funds from his or her personal resources. As Holman J vividly said in Luckwell v Limata [2014] EWHC 502 at para 6: “I wish to stress with the utmost clarity that neither the wife’s father nor her mother are under the slightest legal obligation whatsoever to pay a single penny to, or for, their daughter, nor their grandchildren, nor, still less, their son-in-law.” This statement is wholly consistent with law and fairness. The court’s function is to distribute the parties’ resources, not the resources of wider families; see paras 66 and 67 of Alireza v Radwan [2017] EWCA Civ 1545.

(ii) That said, on occasions wider family members may show themselves prepared to assist, willingly and under no pressure from the court to do so. Two distinct scenarios spring to mind;

(a) Whether a spouse’s family will be likely, if requested, to come to his or her aid in meeting specific needs personal to the spouse in question and;

(b) Whether a spouse’s family will be likely, if requested, to come to his or her aid in making a payment to the other spouse to assist in bringing financial remedy proceedings to a conclusion.

(iii) The first scenario is not uncommon. If means are available, the wider family, although under no legal obligation to do so, may willingly help with buying a house or meeting income needs if the alternative is homelessness and penury. But the evidence of willingness to do so must be clear. Mere speculation, or optimistic assumption, is insufficient.

(iv) The second scenario is rarer, for obvious reasons, although it can unlock cases and bring about settlement. For example, the family of a spouse may offer to pay the receiving spouse a lump sum to avoid sale of the marital home. Again, in my judgment, there must be clear evidence to justify such a finding. Speculation and optimistic assumption will not suffice.

(v) The court should not place pressure on the third party who is perfectly entitled to decline to provide support. As Deputy High Court Judge Nicholas Mostyn QC (as he was then) said in TL v ML [2005] EWHC 2860 at para 101:

“The correct view must be this. If the court is satisfied on the balance of probabilities that an outsider will provide money to meet an award that a party cannot meet from his absolute property then the court can, if it is fair to do so, make an award on that footing. But if it is clear that the outsider, being a person who has only historically supplied bounty, will not, reasonably or unreasonably, come to the aid of the payer then there is precious little the court can do about it.”

The judge was there addressing the second of my suggested two scenarios, but in my view his remarks apply with equal force to the first scenario.

(vi) In either scenario, where the evidence shows, to the requisite standard of proof, that third party family members will likely provide financial support to one or other of the spouses, that, in my judgment, constitutes a resource that a court is entitled to take into account. To do otherwise would be artificial. As to the sort of evidence which the court will evaluate when deciding upon the likelihood of future assistance:

(a) Usually the court will look to see whether bounty has been provided in the past, in what quantity and over what amounts of time, as evidence of a pattern.

(b) Additionally, the court can look at specific offers of long-term future financial support made to a spouse before or after marital breakdown.

(c) Offers of interim provision to tide the spouse over with assistance towards legal fees and income needs during the period of litigation will be of very limited evidential relevance to the question of whether long-term future support will be forthcoming. Usually such payments are transitory in nature, designed to assist the recipient spouse with the demands of the litigation.

(d) Absent clear evidence establishing (i) a track record of historic payment and/or (ii) reliable representations of future subvention, the court will be hard pressed to be satisfied of this class of resource.

Ultimately, however, the judgment resounds with the quotation that appears in the DMLR:

§98 This self-defeating litigation is now over. It is scarcely credible that at the end of it all, they emerge with about £5,000 each of liquid assets, having incurred nearly £600,000 of costs, but such is the reality. There may be worse examples of disproportionate and ill-judged litigation, but none spring readily to mind.

Alexander Chandler, 7 June 2020

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Law

Where the judge goes too far…

Serafin v Malkiewicz [2020] UKSC 23

It isn’t easy being a judge. It isn’t easy getting to grips with the factual and legal complexities of a case, listening to evidence, weighing up the parties’ cases and reaching findings of fact on credibility. The task is more difficult where a case is badly or incoherently pursued, or where one or more parties acts in person. (Those two categories are not mutually exclusive). Or where a judge is faced with the pressures of an inadequate time estimate for a hearing, additional cases being added into the list or the occurrence of one or more of Sedley’s Law of Bundles.

Judges tempers occasionally snap. They are, after all, human.

However, sometimes it goes well beyond that.

Serafin was a claim for libel arising out of articles published in a Polish language newspaper (Nowy Czas/ New Time) which called into question the claimant’s reputation as a businessman.

The trial took place before Mr Justice Jay in October/ November 2017, best known for his role as leading counsel (as Robert Jay QC, prior to his appointment in 2013) for the Leveson inquiry.

By the time of the trial, the claimant (Jan Serafin) was acting in person; hardly an easy proposition in a libel claim involving considerable legal and factual complexity (the article in dispute was alleged to have had thirteen defamatory meanings/ imputations (titled ‘M1’ to ‘M13’), listed before a High Court judge in the QBD, and where the claimant’s first language was not English.

Once the wheels of justice had finished grinding, the claim was dismissed in its entirety. Mr Serafin (who re-instructed his lawyers) appealed to the Court of Appeal on three main grounds, the last being the judge’s conduct of the trial (i.e. ‘serious procedural or other irregularity’: CPR r.52.51(3)(b))

Court of Appeal

The Court of Appeal (Lewison, McCombe, Haddon-Cave LLJ) allowed the appeal, both on substantive grounds relating to the trial judge’s legal rulings (which fall outside the scope of this blog [a.k.a. defamation is not my area of law]) including that the judge was wrong to find that the statements complained of were already in the public domain. The third ground (judicial unfairness) was addressed by the Court of Appeal in its judgment, in a passage (from §108 to 118) which begins, somewhat portentously:

“[108]…It is a fundamental tenet of the administration of law that all those who appear before our courts are treated fairly and that judges act – and are seen to act – fairly and impartially throughout a trial

The court reminded itself that it is wrong for a judge to descend into the arena and give the impression of acting as advocate (§ 110), before concluding that:

“[114]…It will be immediately apparent from reading these extracts (in particular the passages which we have underlined) that the Judge’s interventions during the Claimant’s evidence were highly unusual and troubling. On numerous occasions, the Judge appears not only to have descended to the arena, cast off the mantle of impartiality and taken up the cudgels of cross-examination, but also to have used language which was threatening, overbearing and, frankly, bullying. One is left with the regrettable impression of a Judge who, if not partisan, developed an animus towards the Claimant.

The CA proceeded to annex extracts from the transcript, demonstrating the judge’s “serious transgressions”.

So far, so bad, from the point of view of Mr Justice Jay. While judges periodically see their decisions overturned on appeal, and on occasion find some (often veiled) criticism of their conduct in a given case, it is vanishingly rare for pages of transcript to appear, appended with criticism to a Court of Appeal judgment.

But in part due to the incoherence of the Court of Appeal’s order, the matter did not end there. On 3 June 2020, the Supreme Court weighed in.

Supreme Court

Law on unfair trials

Between §§ 37 and 46 of the court’s judgment, Lord Wilson reviewed the law relating to unfair trials:

[40] The leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal, delivered on its behalf by Denning LJ, in Jones v National Coal Board [1957] 2 QB 55. There, unusually, both sides complained that the extent of the judge’s interventions had prevented them from properly putting their cases. The court upheld their complaints. At p 65 it stressed in particular that “interventions should be as infrequent as possible when the witness is under cross-examination” because “the very gist of cross-examination lies in the unbroken sequence of question and answer” and because the cross-examiner is “at a grave disadvantage if he is prevented from following a preconceived line of inquiry”.

41.              In London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281, Jonathan Parker LJ, giving the judgment of the Court of Appeal, suggested at paras 145 and 146 that trial judges nowadays tended to be much more proactive and interventionist than when the Jones case was decided and that the observations of Denning LJ should be read in that context; but that their interventions during oral evidence (as opposed to during final submissions) continued to generate a risk of their descent into the arena, which should be assessed not by whether it gave rise to an appearance of bias in the eyes of the fair-minded observer but by whether it rendered the trial unfair.

42.              In Michel v The Queen [2009] UKPC 41[2010] 1 WLR 879, it was a criminal conviction which had to be set aside because, by his numerous interventions, a commissioner in Jersey had himself cross-examined the witnesses and made obvious his profound disbelief in the validity of the defence case. Lord Brown of Eaton-under-Heywood, delivering the judgment of the Privy Council, observed at para 31:

“The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.”

43.              The distinction, drawn expressly or impliedly in all three of the cases last cited, between interventions during the evidence and those during final submissions was stressed by Hildyard J in para 223 of his judgment in the M & P Enterprises (London) Ltd case, cited in para 38 above. He suggested at para 225 that, upon entry into final submissions, the trial had in effect entered the adjudication stage.

In relation to the previously unexplored question of how the conduct of a trial might be unfair to a litigant in person, Lord Wilson added:

“[46] … Every judge will have experienced difficulty at trial in divining the line between helping the litigant in person to the extent necessary for the adequate articulation of his case, on the one hand, and becoming his advocate, on the other. The Judicial College, charged with providing training for the judges of England and Wales, has issued an Equal Treatment Bench Book. In chapter one of the edition issued in February 2018 and revised in March 2020, the college advises the judges as follows:

“8.       Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.

59.       The judge is a facilitator of justice and may need to assist the litigant in person in ways that would not be appropriate for a party who has employed skilled legal advisers and an experienced advocate. This may include:

Not interrupting, engaging in dialogue, indicating a preliminary view or cutting short an argument in the same way that might be done with a qualified lawyer.”

Training and experience will generally have equipped the professional advocate to withstand a degree of judicial pressure and, undaunted, to continue within reason to put the case. The judge must not forget that the litigant in person is likely to have no such equipment and that, if the trial is to be fair, he must temper his conduct accordingly.”

Lord Wilson concludes at § 49

[49].              What order should flow from a conclusion that a trial was unfair? In logic the order has to be for a complete retrial. As Denning LJ said in the Jones case, cited in para 40 above, at p 67,

“No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.

As with the Court of Appeal, the Supreme Court’s judgment concludes with several pages of juicy extracts from the transcript, with the Supreme Court’s commentary which is perhaps unique in an English case (“…stops a relevant question”, “…introduces a note of sarcasm”, “… further sarcasm”, etc.)

Conclusion

So, beyond the extraordinary facts of the case, and the (possibly unique) example of a High Court judge being defenestrated in such a public way, what is the interest in the case for a family practitioner?

  1. Serafin contains a helpful precis from the highest court in the land of the expected standards of judicial conduct of trials (§ 37-46)
  2. In Serafin, the court considered to what extent this applied (or might be extended) to litigants in person, by reference to the Judicial College’s Equal Treatment Bench Book.
  3. Most of all, Serafin is a good example of the rule of law and how the adversarial system works in practice. As Lord Denning once said (cited with approval by Lord Wilson in Serafin): “No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

Alexander Chandler, 3 June 2020

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Comment

A Day In The Life…

A Day In The Life… (August 2016)

What is your position and what you do on a day-to-day basis?

I am a barrister and arbitrator at 1 King’s Bench Walk, specialising in financial remedies and TOLATA claims. I sit part-time as a Deputy District Judge in London in civil and family work, and as a panel member on the Bar Disciplinary Tribunal.

How long have you been in this role and what brought you here?

I’ve been a barrister for 20 years and have been sitting for 4 years. The thought of being called to the Bar didn’t occur until after graduation: up until then I vaguely imagined that I’d be a historian, or possibly a critically acclaimed singer-songwriter. I did my 12-month pupillage at 1 King’s Bench Walk, before joining 1 Garden Court as a tenant in 1997. Sixteen years later, in 2013, I rejoined 1KBW.

What are the people you work for/with like? Any memorable stories?

I’m lucky to have worked with, and been instructed by, intelligent and interesting people throughout my career, many of whom have become friends. In the early years of my career at 1 Garden Court – a time of plentiful and decently paid legal aid work – the junior end would go on holiday together, causing unappreciated havoc in a clerks room denuded of barristers under 10 years call. I am now happily settled as a member of 1KBW which, as well as being a leading set for financial and children work, has to be one of the most sociable chambers in the country.

In terms of lay clients, I don’t think I’ve ever acted in a dull TOLATA claim or an uninteresting ancillary relief. It is easy to take for granted the privileged position we are in as solicitors and barristers in family law. All human life is here, including the Russian wife of an oligarch who (after I had attempted to be gallant by hailing her a taxi on the Strand) said in a deadpan voice, ‘Is not necessary’, as her chauffeured Bentley drew up.

What is the best and worst part of the day for you? 

As a barrister, it helps if you like early mornings. I travel less than I used to, but I still enjoy getting to the train station at 7am, dosing up on coffee and boarding a train that was crammed with commuters on the way in, but is now almost empty as it goes out. Equally, it’s a pleasure to come back from court and have time to read on the way back home and to check my Twitter feed (@familybrief).

Without wishing to sound sappy, I don’t have a worst part of the day. Having said that, I doubt I’ll look back on being regularly woken up by a child kicking me forcefully in the jaw, with great fondness.

What adjectives best describe you?

My middle daughter was recently asked this question at school. Her reply was ‘strict, playful and tall’. To which I would only add: ‘… and committed to tirelessly achieving the best possible outcome for my client, regardless of the personal sacrifices involved’ (if any prospective instructing solicitors are reading).

What keeps you motivated?

Doing a professional job, broadening my understanding of the law, and pushing myself towards greater clarity and precision. I believe the applicable term is ‘kaizen’, according to my studies of Japanese philosophy (ie reading the blurb on the menu at Wagamama). 

I also keep in mind a story Matthew Brunsdon-Tully relates about how Lord Wilson used to tell his pupils: ‘you’ve got to make the papers sweat!’. That really is the key: being on top of your brief. 

Tea or coffee?

Coffee before 11am, tea afterwards. 

In fact, that’s a rule more honoured in the breach. My eldest daughter (now six) recently drew a cartoon called ‘The man who drank too much coffee’. In it, a woman who is possibly my wife says ‘No more coffee!’, to which I, sitting with my head in my hands, cry: ‘NO! I must have coffee’. The story ends happily. 


What would you say to anyone thinking of a career in your field?

It isn’t easy to come up with original advice. The two clichés that always apply are (1) the profession is more difficult to break into than it used to be, so don’t bother unless you are determined but (2) keep at it if you are. 

To which I would only add, keep humble. Don’t approach the law as if you’re a contestant from X-Factor. 


What song do you listen to the most?

According to iTunes, my most listened song is ‘War on War’ by Wilco. Followed by ‘For a Spanish Guitar’ by Gene Clark. (Full list available on request. I can, quite literally, bore for England when it comes to music.) 


How do you enjoy your time outside of work?

The first casualty of having children (I have three) is your social life, followed by newspapers, relaxing holidays and a car that is smaller than a tank. 

In their place (the activities, not the children), my weekend rituals involve taking the children to Kew Gardens, running the Tamsin Trail around Richmond Park, reading and cooking. Thus far, my midlife crisis has involved me entering half- and now full marathons in day-glo colours. 


If you could change one thing about the family justice system what would it be and why?

While I enjoy TOLATA work, it is simply ridiculous that the financial claims of unmarried couples are determined by reference to trust law, where the court’s objective view of a fair outcome has such a limited role. I would favour a change in the law towards the Scottish model of cohabitee rights. 

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Uncategorized

A Short Explanation

This website is meant to be two things.

  • Firstly, an online library of the articles I’ve written over the years. These can be found in the menu.
  • Secondly, as a legal blog for financial remedy work. Let’s see how that goes.