Category: Uncategorized

The key evidential issue in most financial remedy claims is housing need: not, admittedly, the ‘big money’ cases that grace the law reports; but in the more typical case where more modest assets must somehow be fairly divided so as to meet needs.

Anyone who has bought a property will know that the golden rule is, no matter your budget, the house or flat you really want is going to be out of reach. House hunting involves compromise: location over size, convenience over traffic noise, number of bedrooms over condition of house. It can be a frustrating and opaque experience, thanks in part to English conveyancing rules (where agreements are only binding on exchange), and in part to estate agents who tend to fall into two camps: incompetent (see Lionel Hutz from the Simpsons) and/ or belligerent (see Glengarry Glen Ross: Always Be Closing).

The problem – and it is I’m afraid a very real problem – is how the issue of housing need is currently resolved in court. There are basically three stages to the current procedure:

• At the First Appointment, the court will typically direct both parties to file property particulars and evidence of mortgage capacity. This may support the assertion in Form E as to capital needs;

• At the FDR, the bundle will probably contain a selection of ten or a dozen property particulars. The FDR judge will therefore have some idea of what each party contends for, but no evidence explaining their preferences (the FDR will generally take place before s.25 statements are exchanged). In some cases, the position statements (exchanged at 11am before the FDR) will provide an explanation; in some cases they will not. In any event, (1) the FDR judge may be reluctant to give an indication on what is fundamentally a factual issue without having heard the parties’ evidence; (2) but in any event the court’s ultimate function is not to identify the precise property in which the applicant should live, but to make a broad brush assessment of housing need; and (3) the property particulars prepared for FDR generally won’t be the ones before the court at a final hearing, because of changes in the housing market, and sometimes changes (i.e. a reduction) in the available assets to go around.

• In advance of a final hearing, the parties exchange further property particulars, upon which they are cross-examined at final hearing. Sometimes these are explained in the s.25 statement; sometimes they are not, whereby a request will be made to take the applicant through these in – often lengthy – examination in chief. In which case potentially pivotal evidence is heard for the very first time during the hearing. Then, following some frantic scribbling by the other counsel, there will follow what is often the longest section of the cross-examination, which typically generates significantly more heat than light.

So, what is the problem with that?

Firstly, as with income need, the current system enables – one might say incentivises – each party to aim high (or low), in the expectation that the court will probably navigate somewhere between the polarities of each party’s case. In practice what this means is that a judge will have from the wife’s side a half-dozen property particulars at, say £1 million; and a half dozen from the husband’s side at £500,000, with nothing in the middle. Some judges will fill this evidential gap by going online during the hearing to take a look at Rightmove. Others will apply a ‘judgment of Solomon’. The effect is that the court’s finding of fact on housing need – which may be the main driver of capital division – is based not on either party’s evidence but informed guesswork, or upon a judge making his own enquiries by searching online during the hearing:

Second, documentary evidence of housing need involves the operation of a species of Sedley’s Law of Documents: property particulars are frequently illegible, sometimes consisting of little more than a postage stamp sized photo, they can be printed in such small font that it is impossible to read, they may not contain a floor plan, they frequently have already been sold and so are off the market, etc.

Thirdly, oral evidence about housing need is often of fair to middling quality. There are, admittedly, some instances where a helpful or useful answer is given (e.g. “No, I can’t live there. It’s a retirement home not available to the under 60s and I have three young children”, or, “No, that house is outside the catchment area of the school we agree our children should go to”), but such answers will be an island in a sea of generalised, and often self-serving, comments about a property being “outside my support network”, “the house is ex-council” or “it’s near to a dodgy area”. In every case there may be at least one odd or unexpected answer which tells more about the witness than the case.

Fourthly, many practitioners seem to think that the way to succeed on this issue is to instruct their lay client to religiously visit every single property so that when cross-examined, they can triumphantly respond “I’ve been there. The plumbing’s dodgy”, whereby counsel can submit in closing that their client’s evidence on housing need was eminently credible whereas the other party’s was not (often because he has not actually visited them). In some cases this can be quite unfair: not everyone can devote the hours it takes to visiting a dozen properties, particularly if they have child care responsibilities or are holding down a job. But in any event, the evidence must be taken with a pinch of salt bearing in mind what is actually being asked here (effectively, what is your opinion of a properly which you’ve already said is too cheap?). It is not difficult to say something is wrong with a property: query whether this is actually a substantial issue that genuinely means it is unsuitable, or can little weight be attached to the evidence?

At the end of this sometimes unedifying process, the judge is meant to reach a view as to housing need based upon (a) property particulars which are probably all outside the reasonable or affordable bracket, (b) documents which are either illegible or which don’t provide the necessary information, (c) oral evidence which might be sporadically relevant but which more often is emotive and self-serving.

In such circumstances, in an discretionary area of law which requires a fair outcome for both parties (on what might be described as a zero sum game), the court should not be blamed in reaching a broad based view, which might even have the appearance of reverse-engineering.

What can be done?

I have the following suggestions (some of which I appreciate are already followed by some practitioners):

(1) At an early stage in the case (e.g. in a questionnaire) the objective basis of a party’s case is tested. In an ideal world, Form E could be revised to require more information. But otherwise this could be raised within a questionnaire: “Please state (a) how many bedrooms you seek, (b) in which area(s) you are looking, (c) what sort of property you are looking for, including in size, (d) what other factors are important, e.g. in relation to catchment areas etc.”

(2)    That there must be in every bundle (FDR and final hearing) an agreed map showing where the parties’ properties are located;

(3) That all of the property particulars must include a floorplan, showing total floor space in square feet, and must be legible. Many judges find this information most useful in getting a feel for the issue;

(4) Perhaps most controversially, that the parties collaborate to produce a range of property particulars, to bridge the evidential gap between what one party seeks and what the other asserts will suffice. Accordingly the court will be able to see, not only what each party contends for, but what could be afforded in the middle. This would not form part of either party’s case but it would mean the court could (in its quasi-inquisitorial function) ask a witness about properties somewhere in the middle. Hence if W says she seeks £1m and H says £500k, that there should be a selection of properties somewhere in the middle.

Ultimately, housing need – which is often the pivotal argument in determining how assets are divided – should be addressed in a more rigorous and fair way, and less like an outpost of the Wild West.

Alexander Chandler QC

24 August 2022

Originally published by Thought4Leaders HNW (https://protect-eu.mimecast.com/s/RhNcCKYQyh4XOnSMgsoC?domain=thoughtleaders4.com)

It is a truth universally acknowledged that, save for the most egregious cases, the courts do not take misconduct into account in financial remedy claims.

The s.25(2) checklist of relevant factors includes “…(g) conduct… if that conduct is such that it would… be inequitable to disregard it”, but for fifty years this has been interpreted as applying only to exceptional cases: “gross and obvious” to adopt the formulation of Ormrod J in Wachtel v Wachtel [1973] EWCA Civ 10, which the Lords upheld in Miller; McFarlane [2006] UKHL 24, per Baroness Hale at [145]

“…This approach [‘gross and obvious’] is not only just, it is also the only practicable one. It is simply not possible for any outsider to pick over the events of a marriage and decide who was the more to blame for what went wrong, save in the most obvious and gross cases.”

But does this reluctance to hear allegations of conduct in a financial claim need to be reviewed in light of changing attitudes towards domestic abuse, which the Domestic Abuse Act 2021 now defines to include “controlling[1] or coercive[2] behaviour” and “economic abuse[3]” (s.1(3)). Might a finding of controlling or coercive control amount to conduct which is either ‘inequitable to disregard’ (per the statute) or ‘gross and obvious’. Is the Financial Remedy Court heading towards the sort of fact-finding hearings that take place in private law children proceedings, pursuant to PD 12J and Re H-N [2021] EWCA Civ 448

The recent case of Traharne v Limb [2022] EWFC 27 is not directly on point: the wife relied on allegations of domestic abuse as a defence to the husband’s case that she should be held to a pre-nuptial agreement (PNA), rather than as a freestanding conduct argument. Nevertheless, the judgment of Sir Jonathan Cohen is instructive in terms of the approach a judge in the FRC is likely to take to allegations of controlling and coercive control.

Traharne v Limb

The essential facts were as follows: the parties were aged 59 and 68 (H). This was a second marriage for both parties, which lasted 8 years. The assets were worth £4m. H sought to hold W to a pre-nuptial agreement (PNA). W raised as an (Edgar) defence to the PNA that H had subjected her to controlling and coercive behaviour, including financial control, ‘gaslighting’, isolating her from her support network and ‘love bombing’ her. H’s open proposal was to offer £465k less amounts already paid by way of interim maintenance and a costs allowance (net £305k); W sought £1.05m and a modest pension share. 

The matter came before Sir Jonathan Cohen for a 4 day hearing. The headline points from Mr Justice Cohen’s characteristically clear and concise judgment are as follows:

• Both sides were criticised for the ‘misconceived steps’ which had led to the incursion of £650,000 of costs in a ‘not big money’ case;

• In relation to the PNA, the court applied Radmacher v Granatino [2010] UKSC 42 and  Edgar v Edgar [1980] EWCA Civ 2, finding that Ormrod LJ’s formulation of the vitiating factors is “…as relevant now as they were when uttered over 40 years ago”. Notably, allegations of coercive and controlling behaviour “… would plainly be an example of undue pressure, exploitation of a dominant position or of relevant conduct”;

• On the facts, the court found that W was vulnerable at the time when the PNA was negotiated, and that it did not meet her financial needs;

• However, the court rejected W’s allegations of controlling and coercive behaviour, and found no causal link between those allegations and W entering into the PNA;

• ”; and

• W’s needs were assessed at £378k, comprising an income fund of £192k, capital of £21k and £165k pension. In terms of costs both sides were criticised and “[95]… W has set her sights far too high. She has increased her claim rather than sought to mitigate it”. H was ordered to contribute a further £80k, which meant that W exited the marriage owing between £70k to £80k to her solicitors. 

Commentary

Firstly, had W been successful in (i) achieving findings of coercive and controlling behaviour, and (ii) a better outcome based upon those allegations, it might have been argued that Traharne was a breakthrough case, comparable to Hayden J’s judgment in the private law case of F v M [2021] EWFC 4. However, W plainly was not successful, although (i) query if W will appeal and (ii) bear in mind that the facts of Traharne were unusual, in that W relied on allegations of abuse as a shield to H’s PNA argument.

Secondly, there was a modest development of law, in relation to Cohen J’s view that coercive and controlling behaviour came within the Edgar factors including undue influence. That conclusion is perhaps unsurprising given that the court has always approached Edgar arguments holistically, and (per Ormrod LJ in Edgar) “…it is not necessary in this connection to think in formal legal terms”;

Thirdly, Cohen J’s judgment identifies the problems with raising allegations of domestic abuse:

(i)  legal costs will inevitably rise, particularly where a pattern of behaviour is alleged. Anyone who has argued for an ‘add back’ will know that there is a world of difference between raising one allegation (e.g. sale of a house at an undervalue) as opposed to establishing a pattern, e.g. from dozens of individual transactions or allegations. The latter (pattern) can require a significant amount of documentary evidence and in due course, longer hearings, and delay, if the individual allegations are disputed.

(ii)  the allegations may not be necessary to resolve a case. On the facts of Traharne, Cohen J found W’s allegations “entirely unnecessary”. Financial practitioners would do well to study the recent judgment of the Court of Appeal in K v K [2022] EWCA Civ 468, which discourages court inquiry into domestic abuse in the context of private law children cases, save where ‘strictly necessary’,

 “A fact-finding hearing is not free-standing litigation…It is not to be allowed to become an opportunity for the parties to air their grievances. Nor is it a chance for parents to seek the court’s validation of their perception of what went wrong in their relationship”

Fourthly, how would a finding of controlling and coercive behaviour fit into the distribution of assets? A judge may conclude (i) that controlling and coercive behaviour amounts to relevant conduct, and (ii) may be sympathetic to the argument that (to cite Lord Nichols in White), “…there is much to be said for returning to the language of the statute”, but how does that fit within the general principles of the law (see helpful recent summary by Peel J in WC v HC [2022] EWFC 22)? Presumably not by enhancing a sharing claim. In which case, it would seem that the argument is only worth pursuing if it means that a party’s needs have increased (e.g. because of the impact of the abuse). Unless the court is also going to be asked to review another issue where most courts have show great reluctance to act: compensation. And then things would really get interesting.

13 April 2022

Alexander Chandler QC

1 Kings Bench Walk, Temple, London

---

[1] Defined in the Explanatory Notes to the 2021 Act at § 76 as follows: “a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim

[2] Defined in the Explanatory Notes at § 75 as “…a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour”

[3] Defined in the Explanatory Notes at § 77

Behavioural economists have a joke: “Consider a turkey that is fed every day”.

“Every single feeding will firm up the bird’s belief that it is the general rule of life to be fed every day by friendly members of the human race ‘looking out for its best interests,’ as a politician would say”[1]. The point of greatest confidence for the turkey, when he is most sure of the friendly intentions of the humans who feed him, is the day before Christmas.

In short, we are all creatures of habit.

We base our decisions on recent experience and we are not very good at taking into account unexpected risk. Or, to put it a different way, we have all become so used to things like low inflation and house price rises that recent events have come as a terrible jolt to our twenty-first century lives: a European war, a 30 year high for inflation, unprecedented rises in fuel costs.

Financial remedy orders and indexation

More specifically, for at least a decade, one of the less interesting details of most financial remedy settlements has been the question of whether maintenance should be indexed. The discussion normally happens after the big issues have been resolved (capital settlement, amount and duration of maintenance, pension sharing), and you’re left with a handful of seemingly minor details. “And my client wants indexation”, which will either be met with grudging acceptance (‘my client’s only going to be paying an 2% pa so no biggie’), or dropped in the face diehard resistance (‘well, my client was only going to receive an extra 2% or so pa so no biggie’).

And now, in the famous words of Harold Macmillan, “Events, dear boy, events”.

Orders with indexation

The first point is for those in receipt of a periodical payments order with indexation, make sure you do the calculation properly and annually. Happily, following the standardisation of drafting, most such orders are now reasonably clear (at least to lawyers), in that there should be reference to an annual date, when the maintenance will be increased by the difference between the retail price index (RPI) or consumer price index (CPI) between 3 and 15 months beforehand.

The difference between the RPI and CPI is that the RPI includes mortgage interest payments, so is affected by house prices and interest rates. Historically, the RPI has been higher than the CPI because of house price inflation, although this may change as the 2021 spike in house prices subsides. The reason why orders refer to 3-15 months is that it takes time for inflation figures to be collated and published. Which is bad news because the current reported rise of 7% reflects changes before the impact of the Ukrainian war and the dramatic rise in fuel prices.

The easiest way to calculate indexation is to use a resource such as AAG Cloud. For those without a subscription, the applicable CPI/ RPI rates can be obtained from the ONS (https://www.ons.gov.uk/economy/inflationandpriceindices).

If annual increases have been missed (as is often the case) it may not be easy to pursue these through enforcement given the requirement of leave to pursue arrears that built up more than 12 months before the application date (s.32(2) MCA).

Orders without indexation

What to do where a maintenance order excludes indexation and the client is now facing steep increase of housing expenses?

An application could be made to vary, on the basis that the rise in the costs of living amounts has increased the recipient’s needs, amounting to a change of circumstance under s.31(7). The understandable reluctance to pursuing this course is (a) cost, (b) delay. However, it’s worth bearing in mind that an application to vary the quantum of maintenance would (presumptively) proceed as a fast track application (FPR 9.9B(3)(c)), which could in theory be resolved at the first hearing. (Not that I’ve ever seen that done).

It might be hoped that in many cases a sensible way forward might be agreed outside court.

Conclusion

The first, obvious point, is that it is difficult to see why anyone would settle a maintenance order without indexation (unless acting for the payer). With inflation at 7% and rising, the real benefit of any sums received stand to erode considerable without indexation by reference to CPI or RPI.

Perhaps what the recent news takes us back to, as financial remedy lawyers, is the fact that we are just as much creatures of habit as the Christmas turkeys. We are as influenced by what is now called ‘lived experience’ as our clients and we are not very good at taking into account unexpected events.

Alexander Chandler QC

13 April 2022

---

[1] Taken from Nassim Taleb, “Black Swan”

A round-up of developments in financial remedies

This time of year, if I’m not playing ‘Merry Xmas Everybody’ by Slade, I’m probably forcing my family to listen to ‘Happy Xmas (War is Over)’ by John Lennon and Yoko Ono, with its poignant opening lines: “So, this is Christmas, and what have you done?/ Another year over. A new one just begun”.

Which prompts the lawyer in me to consider (i) what have we done, in terms of financial remedy work in 2021? (ii) what awaits us in the New Year; and (iii) doesn’t New Year traditionally begin after Christmas?

(1) The Financial Remedies Court

First and foremost, 2021 was the year in which financial remedies finally got its own court. This was the culmination of a five year scheme, announced by Sir James Munby in November 2016, which began with a pilot scheme in the West Midlands in April 2018. On 15 February 2021, the Financial Remedies Court was announced, under the auspices of Mr Justice Mostyn and HHJ Hess, as a subsidiary structure working within the Family Court (see overall structure document).

The FRC have published a range of practice guidance including:

• Good Practice Protocol of November 2019, which is notable for the best practice guidance that questionnaires should generally be no longer than 4 pages (see § 13);
• Reports of the Farquhar Committee (‘The Way Forward’), October 2021
• Consultation document relating to press reporting, November 2021
• HHJ Hess’s “Practice Message” to London FRC, December 2021
• Draft/ Proposed Efficiency Statement Statement

Inevitably, there is work still to do. There is a (very) long-standing ambition to bring quasi-family claims under TLATA and the Inheritance Act into the fold. The FRC website is in its infancy and does not yet have all of the relevant guidance. Practitioners have to adjust to the terminology (Financial Remedy Court/ FRC not FRU). However, this is a bold start for – dare I say – an area of law which has traditionally been the Cinderella of Family Law.

(2) Confidence and Confidentiality

My second festive pick also isn’t a case; it’s the final report of the President’s Transparency Review, ‘Confidence and Confidentiality’ (28 October 2021).

This surveyed the bewilderingly complex state of the law relating to privacy in the family court, and asked why earlier procedural reforms had produced such paltry results (A. while the press might be able to attend, what they could report was severely prescribed and subject to the contempt of court provisions at s.12 of the Administration of Justice Act 1960).

The report marked a decisive shift of gear in opening up the family court, balanced against the need to preserve confidentiality of children. The time has come

[35] My overall conclusion is that the time has come for accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear. Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives. Openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality

The President indicated reform to s.12 would be achieved through the Family Procedure Rules Committee and not Parliament (although, query how a statute can effectively be nullified by a procedural rule). Other recommendations included the encouragement for judges are to be encouraged to put more judgments on BAILII (McFarlane P suggested 10%), setting up links between the family court and editors, a more systemic approach to data collection and moves away from anonymisation of court lists. A separate consultation document has now been produced by Mr Justice Mostyn and HHJ Hess.

The first sign that ‘Confidence and Confidentiality’ might actually change the way we work, in terms of how cases are heard and reports, (as opposed to being observed in the breach), was contained in two decisions by Mostyn J, in BT v CU [2021] EWFC 87 and A v M [2021] EWFC 89, in which the Learned Judge indicated that from now on, his presumptive position in financial remedy cases should be (subject to preserving the children’s confidentiality) publishing the names, as in other areas of law. A second sign of movement towards open justice, albeit in a very different context, is the Court of Appeal’s decision to identify the perpetrator of marital rape (as found on the balance of probabilities at a fact-finding hearing) in Griffiths v Tickle [2021] EWCA Civ 188

(3) Maintenance pending suit

The calendar year began with the Court of Appeal’s decision in Rattan v Kuwad [2021] EWCA Civ 1. This was an unusual case, in that it was a second appeal from an interim decision, involving a comparatively modest asset case. The significance of the decision is that it restored the decision of the trial judge and held that there was no need for extensive analysis, or the invariable production of an interim budget in every case. This remains a discretionary area of law in which the court might legitimately apply the broad brush (see earlier article). Also see E v B (Interim Maintenance: Inaccurate Time Estimate) [2021] EWFC B90 for the general warning that applications for MPS and/ or costs allowances must be conducted proportionately, allowing the court adequate time.

(4) Covid probably not a Barder event

Back in what future generations might describe as ‘Year 1 of Covid’ (when we thought it would be over by Xmas), for many lawyers, the question arose: might it be possible to re-open final orders based on the basis that it was ‘unforeseen and unforeseeable’. Might an event as unprecedented (at least since the flu pandemic of 1918-20) or seismic, cause the courts to review the historic reluctance to reopen cases based on economic change (cf Myerson No 2 [2009] EWCA Civ 282).

In two words, the answer is ‘probably not’. In BT v CU [2021] EWFC 87 Mostyn J concentrated on the net effect of COVID to the business at stake, and concluded that the downturn was insufficient for the purposes of a set aside application. In BT v CU the business was saved by a huge level of Government support by way of the furlough scheme. Indeed, the reason why the courts have not been swamped with applications to reopen final orders from late 2019/ early 2020 is probably down to the support from furlough. An interesting counter-factual is, what would the outcome have been without Government largesse of that level? BT v CU contains important guidance in relation to other issues including executory orders/ Thwaite

(5) Litigation 101: witness statements and draft orders

On 10 November 2021, Sir Andrew McFarlane handed down memoranda on two areas of practice, to gently remind practitioners that when it comes to witness statements and drafting orders, there actually are some fairly basis rules and requirements to follow. Both of these documents are important to read (assuming you are not already au fait with the, generally overlooked, evidential requirements of FPR Pt 22 which are largely modelled on CPR Pt 32).

Indeed, the encouragement that family lawyers should bear in mind wider legal principle, is very much a current theme. If there was a word of the year in family law, that word was probably ‘Alsatia’. And, as everyone will readily recognise (ahem), Alsatia refers to that part of Whitefriars which for a period of time in the seventeenth century provided sanctuary for perpetrators of crime. The reason why family judges make reference to Alsatia is to underline the point that for too long family lawyers have acted as though they operate their own, special law (see, e.g. traditional approach to freezing orders). Accordingly, in several judgments by Sir James Munby and Mostyn J, the point is made that family law is not an Alsatia and in fact needs to return to the mainland of the law.

(6) Schedule 1 – WATCH THIS SPACE

The Court of Appeal’s judgment in DN v UD is expected imminently (22 December 2021). Without wanting to overly raise expectations, this appeal from the magnum opus decision of Williams J (see earlier article), might involve a substantial review of this area of law which has been largely unexamined at an appellant level since Re P

There is, for students of unusual claims, the decision in Siddiqui v Siddiqui [2021] EWCA Civ 1572 which is probably a contender for the case with most unsurprising outcome, to the effect that a 41 year old man cannot obtain financial relief for himself from his parents through Schedule 1 to the Children Act.

(7) Variation of lump sums

In BT v CU [2021] EWFC 87, Mostyn J also addressed (and disapproved) the practice of drafting ‘a series of lump sums’ as opposed to ‘lump sums by instalment’, thereby to avoid the court’s variation powers at s.31. Per Mostyn, this practice amounts to no more than ‘camouflage’ (cf. CA in Hamilton [2013] EWCA Civ 13), but observed that for two generations the court have overlooked the original Law Commission recommendations from 1969, whereby any lump sum by instalment should be variable, but only as to timing and not quantum.

(8) Costs – an ongoing debate

The issue of costs in financial remedies remains somewhat vexed. We now operate in a system where Calderbank offers cannot be effectively made (except in Schedule 1), but parties are now obliged to send two open proposals: one following the FDR; the other in advance of a final hearing. The duty is ‘to negotiate openly and reasonably’ (PD28A § 4.4)

We are beginning to have reports of cases where court has made costs orders, applying rules requiring reasonable open negotiation. In OG v AG [2020] EWFC 52, Mostyn J warned practitioners:

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

In the more recent case of LM v DM (Costs Ruling) [2021] EWFC 28, Mostyn J reduced the applicant’s costs order following an MPS application by 50% to reflect the fact that she had ‘made no serious attempt to negotiate openly and reasonably beyond setting out her in-court forensic position[‘

The system is far from perfect and practitioners will be aware of handful of cases involving (to deploy Peel J’s memorable phrase) ‘nihilistic’ litigation in Crowther v Crowther [2021] EWFC 88, where parties destroyed their assets on lawyers.

2022: Incoming

So, what of developments for the coming year (or, according to John Lennon, the year that ended shortly before Christmas), watch out for the following:

(1) The development of structures of the FRC including website containing guidance and a selection of judgments;

(2) Further moves towards open justice. Will we in years to come look back fondly on the days of cases being reported as ‘A v B’ and ‘S v S’? Will anonymisation and even hearings in private one day become the exception rather than then norm;

(3) With the new year comes a new publication (in which I declare an interest): the Financial Remedies Journal, which will be launched in Spring 2022;

(4) Is 2022 going to involve a change of the law in relation to areas such as domestic abuse in financial remedies. Is the current law so out of step with other areas (e.g. private law, Re HN [2021] EWCA 448) that the conduct which falls short of being ‘very exceptional’ (see wording of Form E) might be taken into account?

Alexander Chandler

19 December 2021

Facts

Like all good cases, the essential facts of Rattan v Kuwad can be stated briefly:

• Within her claim for financial remedies, the Wife issued a claim for interim maintenance (i.e. ‘maintenance pending suit’ or ‘MPS’), seeking £3,250 pm;
• At a hearing on 1 October 2019, DDJ Morris awarded W £2,850 pm;
• H appealed. He contended that the DDJ had misapplied the law, failed to critically analyse W’s budget and included items that were not required for the short-term;
• On 6 January 2020, H’s appeal was allowed by HHJ Oliver, who concluded that the DDJ had indeed erred. An application for MPS ‘…should deal with immediate expenditure needs which have to be critically examined’, which the DDJ had failed to do. HHJ Oliver accepted W was in need of maintenance but concluded that he could not determine the figure;
• W was granted permission to appeal HHJ Oliver’s order, thereby presenting the Court of Appeal with a rare opportunity, this being a second appeal pursuant to CPR 52.7, to review an interim order, in what has always been a difficult area of practice;
• The Court of Appeal sat on 2 December 2020, and handed down its judgment on 11 January 2021, allowing W’s appeal (quite a feat, given that W had acted in person in the CA) and restoring the order of DDJ Morris.

Judgment of Moylan LJ

The lead judgment was handed down by Moylan LJ, with whom Macur LJ and Asplin LJ agreed. The law is reviewed from §§ 31 to 40, and the determination is between §§ 47 and 56.

It should be underlined that Rattan does not overrule earlier authority, or purport to lay down new guidance which applies to all cases. Rather, it restores a more discretionary approach to MPS applications, and dilutes the guidance contained in such cases as TL v ML [2006] 1 FLR 1263, to the effect that guidance which may apply in complex big money litigation need not be applied with equal force to more straightforward applications.

Practice Points

The following practice points can be noted:

1. Broad assessment

This was a straightforward case (‘not unduly complex’ § 47), which ‘did not require any extensive analysis but was an application which could be determined justly with a succinct summary and consideration of the relevant factors’

2. Separate MPS budget

The guidance that in every MPS application an application must present a ‘specific MPS budget which excludes capital or long-term expenditure’ (TL v ML [124(iii)] does not apply to every application. At § 51, Moylan LJ comments: “This case also demonstrates that it is not necessary for an applicant for maintenance pending suit to provide a list of income needs distinct from that set out in the Form E. As the wife submitted, she was seeking no more than her basic needs which she had set out in her Form E”

3. Forensic analysis of budget

W’s Form E budget was described as ‘…the type of budget which will be very familiar to judges determining financial claims and which they are well placed to decide on a broad assessment’. Per Moylan LJ at § 48 ‘The court was not required to undertake any greater ‘critical’ analysis of a schedule of income needs than is required of any other aspect of the case. The court is required to undertake such analysis as is sufficient to be satisfied that the ultimate award is ‘reasonable’. In some cases this might require a detailed examination… in others, such as the present case, it will be immediately apparent whether the listed items represent a fair guid to the applicant’s income needs’. In other words, the time-honoured guidance that an MPS budget should be ‘examined critically in every case to exclude forensic exaggeration’ (see Thorpe J in F v F [1995] 2 FLR 45 and Nicholas Mostyn QC (DHCJ) in TL v ML [2006] 1 FLR 1263 at [124(iii)]) does not have to apply in every case, including more straightforward cases

4. ‘Immediate’ needs

Per Moylan LJ at § 49, when the court is dealing with ‘immediate’ needs on an MPS application, it is dealing with those needs that might arise pending the final determination of the order. “The word “immediate”, in this context, does no more than reflect the fact that the court is concerned with an order for maintenance pending the final resolution of the financial dispute between the parties. However, the use of this word does not mean that the court should embark on the type of exercise undertaken by the Judge in this case. The fact that some items of expenditure are not incurred every month does not mean they should be excluded for the purposes of determining what maintenance is reasonable

5. Proportionality and sufficiency

In words that will chime with anyone who has conducted (or responded to) an MPS application within a time estimate of 1 or 2 hours, Moylan LJ concludes that on the facts of the case, the DDJ’s approach (which did not involve a forensic analysis) was sufficient. At § 54,

“… it is clear to me that the DDJ undertook a sufficient analysis of the relevant factors to support her decision. As referred to above, she plainly accepted that the wife’s listed needs were reasonable. She was entitled to include the amount sought for school fees. She took into account the wife’s likely income. It is also clear that she analysed the husband’s budget and the parties’ respective cases as to the husband’s resources and determined that the husband had sufficient resources to meet the wife’s income needs as well as his own needs. Accordingly, considered the relevant factors and reached a fair decision as to what level of maintenance would be reasonable. In those circumstances, there was no basis on which the Judge could properly interfere with the DDJ’s decision”.

Concluding thoughts

Several years ago, I wrote an article which suggested there are two forces at play in financial remedies: the mathematical and the discretionary. I described the first school of thought as the boffins, the second as the gurus. The boffins seek to identify the relevant factors whereby the outcome of a case might ultimately be calculated according to an Excel formula. The gurus represented a more old school approach, stepping back from the detail and reaching an outcome which in all the circumstances felt right. I posed the question:

“are we meant to be gurus, ruminating on the facts and handing down our ‘gut instincts’ on the likely outcome, or boffins, preparing spreadsheets calculating apt values based on concepts of passive growth?”

While it would be a mistake to view Rattan as re-writing the law concerning MPS, it marks a shift – a decisive one in more straightforward cases – away from an adherence to the principles set out in TL v ML, towards a more broad brush and discretionary – and less rule bound – approach to applications of this nature.

Alexander Chandler

25 January 2021

Or, how not to wash your dirty laundry in public

Adele is by all accounts a very private person. She is, if the tabloids are to be believed, ‘publicity shy’ or even ‘super shy’, to the point of being ‘reclusive’.

The news in 2019 of the breakdown of her marriage to Simon Konecki broke with a flurry of headlines speculating about the financial terms of their divorce. According to The Times (“Adele’s Husband Will be Rolling In It After Divorce”, 21 April 2019), Adele “…could be forced to hand half of her £140m fortune to her husband”.

That, admittedly, is not a view likely to be shared by anyone with (a) actual knowledge of the case, or (b) even a passing acquaintance with Family Law 101. However, in fairness to the Times, the article wasn’t written by its Legal Editor, but an Entertainment Correspondent. This tells you everything you need to know about the news values that apply to celebrity divorce stories, where the emphasis is firmly on ‘celebrity’. 

The risks of going to court

Advising a celebrity who is about to go to court in a family case, or indeed anyone who wants to keep their private business private, brings the question of publicity into focus. Will the press actually be there? If they do attend, will the hearing be in private, with restrictions on what can be published, or is there a possibility that the hearing will be conducted in open court?

The applicable rules can be summarised as follows:

1. Family hearings are normally heard in private (Family Procedure Rules 2010 (“FPR”), r. 27.10); 
2. Accredited members of the media may attend private hearings (FPR r.27.11(2)(f)), as may legal bloggers, in accordance with a Pilot Scheme at FPR PD 36J. An exception to this rule arises where a hearing is conducted for the purpose of judicially assisted conciliation or negotiation, such as a Financial Dispute Resolution appointment, where neither media nor legal bloggers can attend (FPR r. 27.11(1));
3. What the media can actually report at a private hearing will generally be extremely limited to whether the parties actually attended, the nature of the hearing and the identity of the lawyers etc. (reminiscent of the convention that prisoners of war only give name, rank and serial number). In practice, this may not prevent some news organisations, such as the Mail Online from publishing endless photographs of the parties taken outside the court building, with the dubious hook of the news story being that the parties’ attended court;
4. The court has a discretion to exclude the media completely, such as where the interests of a child require, (FPR r. 27.11(3), although in practice this is difficult to achieve;
5. Equally, the court has a discretion to conduct the hearing in open court (FPR r. 27.10), which in practice has been sparingly used, most commonly in cases heard by Mr Justice Holman.

The decision to hold a hearing in open court can have significant consequences. Most famously, in Spencer v Spencer, the Earl settled for an additional £1m after Mr Justice Munby (as he then was) decided that the hearing would be in open court. According to the Guardian, the Earl subsequently sought to recover the additional sum from his advisers, who he contended had not warned him of the possibility of the hearing not being in chambers.

An added complication is that for several years in the Family Division of the High Court, one judge, Mr Justice Holman has generally exercised the discretion in favour of hearings in open, while most other judges invariably resolve the issue the other way and sit in chambers (in private). Anyone who doubts the insatiable newspaper appetite for family law should consider the case of Fields v Fields[2015] EWHC 1670. After Holman J directed that the case should be heard in open court, the details of the parties’ claims and their high legal costs made the front page of the Telegraph, despite neither party previously having any public profile, and the case being of limited legal interest. In Fields, the parties had the misfortune of being photogenic enough to merit the front page. 

It used to be the case that the damage from adverse press reports could be short lived: today’s headlines are tomorrow’s fish and chip paper. However, as Aaron Sorkin put it so brilliantly in ‘The Social Network’, thanks to Google etc, this no longer applies: “The internet’s not written in pencil. It’s written in ink”. 

Reputational damage that arises from a bad headline will now last for as long as the information appears on a Google search.

Alternative Dispute Resolution: Arbitration

So, even in the family court, there are risks of publicity. But there are alternatives. There is, for example, mediation, although a mediator’s role is limited: he or she can broker a settlement, but cannot decide an issue where the parties disagree. What options might Adele have if Mr Konecki, fortified by the views of the Times’ Entertainment Correspondent, decides he won’t take a penny less than £70m?

The answer – in terms of a private but also determinative forum – lies in arbitration. Since 2012, divorcing couples have been able to put their disputes to a privately instructed arbitrator, accredited by the Institute of Family Law Arbitrators. The application is made on an ‘ARB FS1’ form, jointly signed by both parties, which may nominate the preferred arbitrator.

A key element of any arbitration is privacy: Article 16.1 of the IFLA Arbitration Rules provides “…The general principle is that the arbitration and its outcome are confidential, except insofar as disclosure may be necessary to challenge, implement, enforce or vary an award (see Art.13.3(c)), in relation to applications to the court or as may be compelled by law”.

In other words, the media has no right to attend an arbitration. Nor would they receive any notice of the venue of the arbitration (unlike court lists which are posted in the court building). The only possibility of the confidentiality of an arbitration being breached would be where a court hearing takes place, either to enforce compliance, or where one party seeks to oppose the making of a court order in terms of the final arbitral award (See Haley v Haley [2020] EWCA Civ 1369)

Much has been made of the advantages of arbitration, which is sometimes described as the BUPA option compared with going to court: that the hearing can take place speedily, where the parties control which issue are put to the arbitrator’s decision etc. However, the key advantage for anyone seeking to protect their public profile, and to avoid further washing of dirty laundry, is that arbitration offers far greater privacy.

Alexander Chandler MCIArb

Originally Published by the Transparency Project, 9.5.19, subsequently amended 22.1.21

Fun for All the Family!

Rules of the Game (5 players)

Players form into two teams, apart for one player who will be the Judge. Each of the teams should comprise one Client and one Advocate.

Prepare your budget

Each team receives a blank sheet of paper and has 14 weeks to think up as many outgoings as possible. Let your imagination run wild (bonus points for savings, depreciation, pocket money for children over 25 etc.). Give monthly figures for some items, annual or weekly figures for others (lose 1 point for consistency). Inflate a dozen figures at random to produce Future Outgoings.

Calculate the total (lose a point if properly calculated), which should be at least 75% of combined incomes, unless the parties are playing Big Money, in which case the sky’s the limit (horse therapy). Team who puts actual outgoings in the budget: lose 5 points.

The teams then play three rounds in front of the Judge

• First round: Advocate says the other Team should explain why £800 pa is needed for spa treatments or £250 for a dog when they don’t have a dog. Judge should refuse and say “this amounts to cross-examination” (1 point). Round ends when someone says “Sauce for the Goose!”

• Second round: Point for each time one Advocate says ‘wishlist’ or ‘exaggerated’, or the other Advocate says ‘hair shirt’ or ‘short rations’. The Judge should either nod or raise eyebrows but look studiously non-committal. Round ends when the Judge says “Ultimately, everyone is going to have to cut their cloth accordingly”.

• Final round: H’s Advocate asks W a series of detailed questions about cleaning products, and puts it to her (1 point) that she reasonably needs £175 not £250 pm for petrol. Client should look bewildered as if she’d never seen the budget before (1 point) and ask the Judge “Do I have to answer that?” (1 point). Bonus point if the Player gives an embarrassing or personal answer (“That’s for my dry skin”). Extra bonus point if Judge can defuse tension by making wry / unfunny observation.
• The Judge should then ask “Are you going to go through this line by line?”, to which the Advocate can answer “Only selectively” (meaning yes) or “Only if it helps the court” (2 points) to which the judge may say “it’s a matter for you how you put your case” (stalemate).
• Point to the Advocate for every ten minutes he keeps this going. Point to the Judge if he is not staring at the ceiling or inspecting his fingernails within 30 minutes.
• Advocate who says “My client has actually calculated the actual outgoings and we have a 14 page spreadsheet attached to my note”: lose game.
• Game ends when someone says “Purba!”, or “Duxbury” if playing Big Money.

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 18^th 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 18^th 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 18^th 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