The introduction of the family court was the most significant development in family law for many years. However, the change did not fundamentally affect the conduct of financial remedy applications, although there have been various procedural developments since the start of the year. This article summarises some of the most significant.
Abbreviated procedure under part 9 of the FPR 2010
Since April 2014, the shorter procedure under chapter 5 of part 9 of the Family Procedure Rules 2010 (FPR 2010) now applies to variation applications and applications under schedule 1 to the Children Act 1989. Rule 9.18 of the FPR 2010 has been amended accordingly.
The principal differences under the chapter 5 procedure are:
(a) Financial statements are exchanged within 14 days of issue.
(b) A full Form E is not used. The abbreviated Form E1 is used instead. The financial information required in Form E1 is broadly similar to that required by Form E save for two principal differences. Pension cash equivalents are not required, although details of income derived from pensions must be produced. Form E1 does not include the latter sections dealing with contributions, standard of living and conduct, and so on.
(c) A first hearing is listed between four and eight weeks after the application is issued. If possible, the application will be dealt with substantively at that first hearing.
If it is felt that the chapter 5 procedure is inappropriate for the application, a request may be made upon issue to apply the longer chapter 4 procedure.
Before the changes in April 2014, approaches to conducting mediation information meetings (MIAMs) varied significantly around the country. In many areas the exemptions were readily claimed by practitioners with, anecdotally it is said, few MIAMs taking place. By virtue of the revised rule 3.6(1) of the FPR 2010, it is now a requirement that before a person makes a ‘relevant family application’, they attend a MIAM unless one of the exceptions applies.
Form A has now been revised and extended to include the information previously contained in Form FM1. One of the following declarations must be made in Form A:
(a) Confirmation from an authorised family mediator that the applicant has attended a MIAM.
(b) A claim by the prospective applicant that one of the MIAM exemptions applies.
(c) Confirmation from an authorised family mediator that a mediator’s exemption applies.
Rule 3.8 of the FPR 2010 and the corresponding practice direction 3A set out the extensive exemptions. If a MIAM exemption is claimed by an applicant, the court will issue the proceedings but will enquire into the exemption claim either when the case is allocated or at the first hearing.
If the court is of the view that an exemption has not been validly claimed, it may direct that either the applicant or the parties attend a MIAM and may adjourn the proceedings for that purpose.
FPR PD27A was modified on 22 April and 31 July 2014. Practitioners should be aware of the strict warnings given for failure to comply with any part of PD27A. Such sanctions may include a judge removing a case from the list, putting the case further back in the list or even wasted cost orders or some other adverse costs order.
The principal change with effect from 31 July 2014 is that the trial bundle must be limited to a single file containing no more than 350 pages. If a bundle is to exceed that limit, then a specific direction must be obtained from the court either at the Financial Dispute Resolution hearing or at a pre-trial review in accordance with paragraph 5.1 of PD27A.
In light of the risk of sanctions, PD27A is essential reading for all family practitioners. Particular care must be taken in compiling the contents of the proposed bundle. It must include only those documents which are relevant to the hearing and which it is necessary for the court to read, or which will actually be referred to during the hearing.
Items such as correspondence, bank or credit card statements or other financial records must not be included unless a specific prior direction of the court has been obtained in accordance with paragraph 4.1 of PD27A.
If possible, the contents of the bundle shall be agreed by all parties in accordance with paragraph 3.2 of PD27A. Accordingly, there is no absolute requirement for the contents of the bundle to be agreed. Paragraph 4.3 details the preliminary documents which must be contained in the bundle.
In accordance with rule 4.6, a summary of the background, statement of issues, chronology and reading list shall consist of a single document in a form agreed by all parties. Where the parties disagree as to the content, the fact of their disagreement and their differing contentions shall be set out at the appropriate places in the document.
There is no requirement to provide the other party with a copy of the bundle, although it is good practice to do so. Whether or not the bundle has been agreed, the party preparing the bundle shall provide a paginated index to all the parties no less than four working days before the hearing.
The bundle must be lodged with the court no less than two working days before the hearing, or at such other time as may be specified by the court. Preliminary documents shall be lodged with the court no later than 11am on the day before the hearing.
Conduct of proceedings to be heard by a High Court judge
Mostyn J (pictured) issued a statement dated 5 June 2014 regarding the efficient conduct of hearings allotted to be heard by High Court judges. Particular points of note are:
(a) Section 25 statements must contain only evidence and on no account should contain argument or other rhetoric. This is of course a principle which should apply to all proceedings.
(b) Skeleton arguments must comply with Civil Procedure Rule PD52A and PD52C.
(c) There must be compliance with FPR PD27A in respect of bundles and preliminary documents. If advocates fail to comply with the aforementioned provisions in respect of skeleton arguments, preliminary documents and bundles, then they risk an order being made disallowing a proportion of their fees.
(d) Every financial remedy application must be subject to a pre-trial review held approximately four weeks before the final hearing and before the trial judge.
(e) A reminder is given of the guidance dated 1 December 2009 in relation to the procedure for the transfer of financial remedy cases to be heard by a High Court judge. The appropriate form to be used when seeking an upwards transfer is attached to Mostyn J’s statement.
Pilot scheme at the Central Family Court
A pilot scheme is in place at the Central Family Court which is intended to reduce costs and avoid attendance at first appointments where directions are agreed. It is to be reviewed at the end of October 2014.
Where proposed directions are agreed, the parties must file with the court by email at least 14 days before the first appointment the following: a draft first appointment consent order (which must be in the standard form annexed to the pilot scheme), Forms E (without exhibits) and the first appointment documents, together with any other documents which are necessary for the court to approve the draft consent order.
It is anticipated that such applications will be considered by a district judge and their approval or otherwise will be given at least seven days before the first appointment.
Andrew Newbury, Pannone, part of Slater & Gordon