PORTNYKH’S COMPLAINT

 

Without prejudice rule immunity and later court proceedings

This brief note considers the aspect of without prejudice rule negotiations where it is said by one party to the mediation or negotiation that a preliminary phase of discussions is not related to the dispute which is later referred to a court or tribunal; that is, where mediation, conciliation or other dispute resolution did not resolve all issues. It occurs to me that this might be important with family mediation, especially where discussions with a mediator are followed by a reconciliation which later breaks down.

It is probable that in most cases, an earlier mediation would be covered by any without prejudice rule immunity (‘WPRI’) – or ‘privilege’ – arising from a later mediation, assuming that the issues for mediation in both are the same. However, the earlier discussions are not covered by WPRI then the mediator would be compellable as a witness in respect of relevant evidence and if the court is persuaded to waive confidentiality (Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J).

For example, supposing you were mediating following relationship breakdown. In the negotiations the husband’s parents joined in to discuss how the couple’s house had been acquired (with money from the parents). The couple become reconciled. Four years later they are back seeing the same mediator. This time their parents are not there.

(1)   To what extent are admissions made by the parents in the first mediation admissible in court if the second mediation breaks down; or if the couple, four years later, issue proceedings immediately without coming back to you as mediator?

(2)   Would your answer differ if the husband becomes bankrupt at the same time as the separation?

(3)   What would your view be if you understood the parents to be making admissions as part of their concern to keep the couple together?

(4)   How would you suggest the parents deal with things if they come back to see you, where the couple have gone straight to lawyers and started proceedings?

In Portnykh v Nomura International plc [2013] UKEAT 0448-13-0511, HHJ Hand QC (sitting alone) http://www.bailii.org/uk/cases/UKEAT/2013/0448_13_0511.html provides a first class modern summary of without prejudice rule immunity and how it operates in connection with negotiations. He looks at the question in a carefully argued judgement, and especially where it is said by one party that the particular negotiations – in relation to redundancy, where a former employee made concessions in relation to his employment – are not in connection with a dispute or ‘potential dispute’ (as was said in Framlington Group Ltd & Anor v Barnetson [2007] EWCA Civ 502: redundancy negotiations not part of dispute which resulted in subsequent litigation).

In Potnykh the EAT held that the redundancy negotiations were part of a continuum which included the later tribunal proceedings, Therefore the earlier redundancy negotiations, including email correspondence and admissions made in the course of them, were privileged from production in the later tribunal hearing.

A subsidiary issue which arose in Portnykh, but was not determinative of the immunity, related to the ‘unambiguous impropriety’ exemption (see the list of exemptions in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 (set out in DR Law Guide, 1st Ed)): that the without prejudice rule cannot be used to hide impropriety or eg later failure to disclose admitted and material information in later proceedings (where settlement is not achieved).

Portnykh (even if you can remember how to spell it) will not answer the questions posed above; but, I believe, it may give a good insight into the need to be clear on a number of points including:

(1)   Where, in law (as an EAT appeal this had to turn on a point of law: Tribunals, Courts and Enforcement Act 2007 s 11), negotiations are – or are not – intended to settle an incipient dispute if, later, a mediator is asked to provide evidence about negotiations

(2)   Where a party seeks to use WPRI to hide real dishonesty (eg material non-disclosure), and a mediator is summonsed to give evidence as to that impropriety.

Protnykh will be considered further in context in the DR Law Guide (2nd Edition in preparation).

CHARTWELL: THE WAGES OF DELAY

 Compliance on time with court orders, rules and practice direction

In her recent note ‘Witness statements must be served on time – or sanctions bite’ at http://www.stjohnschambers.co.uk/wp-content/uploads/Witness-Statements-must-be-served-on-time.pdf Rebecca Taylor draws attention to Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506 (16 April 2014) http://www.bailii.org/ew/cases/EWCA/Civ/2014/506.html where, in civil proceedings, an order had been made for exchange of witness statements by November 2013. No statements had been filed by then and neither side had sought an extension till, in late January 2014, the claimants made application – retrospectively – for an extension to a date in February.

A question arises as to whether the law as explained in Chartwell applies to family proceedings; and the case finds provides of Keehan J in A Local Authority v DG & Ors (http://www.bailii.org/ew/cases/EWHC/Fam/2014/63.html see below ).  In civil proceedings the court has a discretion as to whether to permit parties to call their witness to give evidence, where they have not, in time, filed and served a court-directed statement by that witness (see further Durrant v Avon & Somerset Constabulary [2013] EWCA Civ 1624 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1624.html ). The terms of the relevant rules in CPR 1998 r 32.10 and FPR 2010 r 22.10 could hardly mirror each other more exactly (a further reason why Alsatianisation of family procedure is so silly; but that is a whole other subject):

 

Consequence of failure to serve witness statement or summary

32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

 

Consequence of failure to serve witness statement

22.10 If a witness statement for use at the final hearing is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

It is the basis on which that discretion – ‘unless the court gives permission’ – is exercised which was at issue in Chartwell. The parties were at odds over certain aspects of disclosure: hence their delay in filing of statements. Both parties accepted that it was a matter for the court to decide as to the filing of statements; and that the criterion for decision on the point was CPR 1998 r 3.9 (relief from sanctions).

Chartwell: the legal framework

 

Under the heading ‘The legal framework’ the Court of Appeal in Chartwell explained their approach to r 3.9 and discretion as follows:

 

[23] CPR 32.10 is in these terms [as above]:

CPR 3.1(2)(a) provides [as does FPR 2010 r 4.1(3)(a))]:

“Except where these Rules provide otherwise, the court may –

(a) extend … the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)”.

CPR 3.8(1) and (3) state [as does FPR 2010 r 4.5(1) and (3)]:

“(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.”

(Rule 3.9 sets out the circumstances which the court will consider on an application to grant relief from a sanction.)

….

“(3) Where a rule, practice direction or court order –

(a) requires a party to do something within a specified time, and

(b) specifies the consequences of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties”.

[23] CPR 3.9(1), as substituted by the Civil Procedure (Amendment) Rules 2013, states:

“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.”

The overriding objective provisions of the Civil Procedure Rules (themselves revised by the Civil Procedure (Amendment) Rules 2013) are too familiar to require repetition here.

 

The Court then considered the effect of CPR 1998 r 32.10 (and, surely by direct analogy, since its wording is the same, FPR 2010 r 22.10) in the context of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html:

[24] It can therefore be seen that CPR 32.10 provides its own sanction for failure to serve a witness statement within the time specified by the court: that is, that the witness may not be called to give oral evidence unless the court gives permission. Since the rules have determined the applicable sanction (unless the court gives permission) there can accordingly be no available argument that the sanction prospectively to be imposed is of itself unjust or disproportionate. As stated in paragraph 45 of Mitchell:

“On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective.”

On the facts in Chartwell, where neither party were ready to exchange the judge below gave each seven days to serve and made no order as to costs. That decision was upheld in the Court of Appeal (paras [37]-[42] and [64]).

Discretion: ‘unless the court gives permission’

Finally in an exercise of discretion the court must look solely at whether a party who defaults should be relieved of the consequences of the sanction:

[25] … For this purpose, the phrase “unless the court gives permission” as contained in CPR 32.10 cannot, in my view, be applied in a free-standing way, leaving the exercise of judicial discretion at large. In deciding whether to give permission, the court has to have regard to and give effect to other relevant rules such as CPR 3.1. It also seems to me inescapable that, for this purpose, the court must likewise give effect to CPR 3.8 and CPR 3.9: just because CPR 32.10 is demonstrably imposing a sanction in the event of failure to serve a witness statement within the time specified.

In considering its discretion under s 32.10 (FPR 2010 r 22.10) the Court, the court is not left to a free ranging exercise. The judge ‘has to have regard to’:

  • The overriding objective
  • Case management powers in r 3.1 (FPR 2010 r 4.1)
  • The fact that sanctions have effect unless relief obtained (FPR 2010 r 4.6)
  • Factors for consideration by the court if a party is to obtain relief from sanctions; and it is here that in terms (if not in real effect) rules in all civil proceedings, save family, diverge.

Relief from sanctions: family proceedings

FPR 2010 r 4.6 is in almost exactly the same terms as the original CPR 1998 r 3.9 (ie pre-April 2013: Alsatianisation by omission by FPRC in this case):

Relief from sanctions

4.6 (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol (GL) ;

(f) whether the failure to comply was caused by the party or the party’s legal representative;

(g) whether the hearing date or the likely hearing date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.

The import of this, in the present context, seems only to be that the court has a wider range of factors to take into account in consideration of its discretion. Rule 4.6(1)(b) seems little more than a cigarette paper away from Chartwell; though other factors are, of course, in play in family proceedings both under r 4.6(1) and the ‘welfare’ aspect, where it applies (see eg in FPR 2010 r 1.1(1))

Why risk Chartwell?

On the other hand why risk it; or as the lawyer involved in the case, why put your client and your insurer to possible expense and inconvenience? The court’s view of failure to comply with orders is clear from such recent family and child law cases as A Local Authority v DG & Ors [2014] EWHC 63 (Fam) as (24 January 2014: a decision commended by Sir James Munby P in his fenestral musing No 9) where Keehan J gave a flavour of what was to come, in that particular case, when he said:

[5] Case management directions have been given on a number of occasions over the last four months. This judgment is being given (a) to highlight the wholesale failure of the parties to these proceedings to comply with those directions and (b) to deal with an important aspect of the interplay between public law care proceedings and concurrent linked criminal proceedings.

Application, before the time-limit expires is by FPR 2010 Part 18. Your firm may have to write off the expense of the application and court fee; but if good reason is given (and other parties do not object or are in the same boat as you and your client) the application is as likely as not to be acceded to without attendance (FPR 2010 r 18.9(1)); especially if the draft order submitted (r 18.7(2)) is acceptable to the court.

Rebecca Taylor concludes her note:

The position is now absolutely clear – if a witness statement for use at trial is not served on time, then a CPR 3.9 relief from sanctions application will be necessary in order for that witness to be called at trial…. Given the very real risk that relief will not be granted, the message is a simple one: either make sure that your witness statements are served on the other party on time, or make a formal application for an extension well before the date passes (emphasis added). Or as Lord Justice Davis put it [in Chartwell] –

“[61] … With the possibilities afforded by the new  CPR 3.9, and when the stakes can be so high, satellite litigation such as has occurred here is therefore perhaps not wholly surprising: albeit most unfortunate. But the one sure way to circumvent such satellite litigation is for parties to comply precisely with rules, practice directions and orders: and, where that really is not capable of being done, to seek from the court the necessary extension of time and relief from sanction at the earliest moment.”

Davis LJ, Rebecca Taylor, Keehan J, FPR 2010 r 4.6 (through a Chartwell prism), with the chilly drafts from Sir Rupert Jackson blowing at the rickety family proceedings doors: all seem to be saying much the same thing….

A SINGLE FAMILY COURT?

 Not while most of the child support jurisdiction is left out

‘Family proceedings’ are defined by Matrimonial and Family Proceedings Act 1984 s 32 by reference to Senior Courts Act 1981 Sch 1 para 3; and this includes para 3(h): ‘all proceedings under Child Support Act 1991’. Since many of these proceedings (eg on appeal from Secretary of State decisions) go to tribunals set up under Tribunals, Courts and Enforcement Act 2007 it must be assumed that para 3(h) applies to child support proceedings within the jurisdiction of Senior Courts Act 1981 (with the exception, perhaps – though no admission is hereby made of such – of judicial review, which is the jealously guarded preserve of the Administrative Court). But what of other cases involving the Secretary of State (ie Child Support Agency) and family proceedings?

The administrative law case of Smith v Child Maintenance Enforcement Commission [2009] EWHC 3358 (Admin) HHJ Jarman sitting as a High Court judge illustrates the point; and shows – surely? – why a single family court is needed. Whether the procedural contortions of that case could recur with the new Family Court remains, since 22 April 2014, to be seen. What follows is unashamedly anecdotal: yes, I represented Mr Smith (whose above judicial review application failed); and in parallel I represented him in a county court where his matrimonial financial remedy proceedings (mostly long disposed of) limped on. The Child Maintenance and Enforcement Commission (the same people as had been the CSA) refused to join in the family proceedings but insisted they would only respond in the Administrative Court. The county court district judge failed to join CMEC in the family proceedings.

Mr Smith was looking after the couple’s children (following lengthy child support litigation which terminated in the House of Lords as Smith v Secretary of State for Work and Pensions & Anor [2006] UKHL 35; and lead ultimately to the present Child Maintenance and Other Payments Act 2008 (‘CS3’, gross incvome) scheme). He owed his former wife arrears of child support maintenance and she would have owed him child periodical payments (she had gone to Spain). They came to an agreement (explained in HHJ Jarman’s judgement) that he would pay her – through my firm’s client account – a capital sum in payment of the arrears and in exchange for her agreeing to call off the CMEC enforcement squad (as can be done by a receiving parent under Child Support Act 1991 s 4(5)).

He paid the money to me; I got her to sign a document for the CMEC; and as she received the cash she told the Commission to ignore the s 4(5) request ‘to cease acting’. Judge Jarman held that they were entitled to decide to continue their enforcement action and ignore the couple’s negotiated arrangement. He refused Mr Smith’s application for permission to apply for a declaration as to the meaning of the terms he had arrived at with Mrs Smith and, following that, a mandatory order addressed to the CMEC to stop enforcement.

Keep it in the Family Court

Today I have two more men in situations where I would have said (pre-22 April 2014) that they must seek a declaration in the High Court (possibly by application in the Administrative Court) under Civil Procedure Rules 1998 Part 8: namely that there is a court order or written agreement (Child Support Act 1991 s 4(10) in its pre-3 March 2003 form) which outlaws calculations to child support maintenance. Ten years and more later the CSA has decided to pursue both men for arrears, where both have in effect paid under count court orders (which the CSA ignore); and where the Secretary of State (CSA through the Treasury Solicitor) say the s 4(10) position post-dates 3 March 2003.

Family Procedure Rules 2010 Part 8 enables application to be made in the Family Court for a declaration in specific types of proceedings (including, as it happens by the Secretary of State under Child Support Act 1991 s 31L: not a well-used provision, I think). Mostly these are by the Part 19 procedure (in effect the old Rules of the Supreme Court 1965 originating summons procedure: for an example of the use of this CM v Exor of the Estate of EJ (deceased) and HM Coroner for the Southern District of London [2013] EWHC 1680 (Fam), where Cobb J made a declaration for extraction of blood from a dead woman). Matrimonial and Family Proceedings Act 1984 s 31E(1) enables an order to be made in the Family Court (s 31J lists particular powers, but does not exclude any: the county court has always been able, for example, to declare the existence of an implied trust in cohabitation disputes: a useful explanation of the jurisdiction is provided by Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387).

So why not a declaration application by one or both of these men, by the FPR 2010 Part 19 procedure, in the Family Court? Why not, indeed? Keep it in the Family Court, I say. To establish a clear declaration jurisdiction in the new court would be another tiny step to establishing its true, by still long distant, ‘single’-ness.

A MOTHER, THREE DOCTORS AND THE PRESIDENT’S NEW FAMILY COURT

Assessment on an interim care application

The first reported case I have seen since the family court came into operation today is Re S (A Child) [2014] EWCC B44 (Fam). It finds Sir James Munby P sitting in Bournemouth County Court dealing with a s 38(6) interim care assessment. The case had taken over five months to come on. I fear it shows the President, perhaps, failing to see that he is acting as judge in respect of legislation he has promoted; and forgetting that as an administrator he has set up the system which he uses – perhaps – ultimately to block contact between a mother and her child. These are strong words. The record, as it seems to me, supports them.

I emphasise that ‘perhaps’: no-one will know of course. The mother exhibited a variety of signs of hopelessness as a mother (summarised in [7] and [8]); but she convinced at least two medical experts that she was worth working with over the assessment. Sir James has firmly pinned his autocratic colours to the ‘family justice’ mast (indeed he quotes himself, his ideas and his plans copiously in this judgement); so was this mother sacrificed on the rickety alter of the ‘family justice’ (meaning children law)? As will be seen, in his enthusiasm for the new law, Sir James fails to follow it – and other aspects of the common and European Convention 1950 law – in important respects.

The new Children Act 1989 s 38(6)

The new law does not come into operation till today; Sir James dealt with the case on 25 March 2004 more or less as if the new law applied. There can be no criticism of that. He was considering an application by a mother for an assessment under Children Act 1989 s 38(6) which for the purposes of the application before him reads:

Where the court makes an interim care order …, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child …

This provision is enhanced, from 22 April 2014, as amended by Children and Families Act 2014 s 13 (which relates to expert evidence) to provide that an assessment may only be ordered where it ‘is necessary … to resolve the proceedings justly’ (s 38(7A)). This is followed (s 38(7B)) by a checklist of factors to which the court is expected ‘in particular’ to have regard.

Sir James drew attention to the fact that the case had taken five months to come on before him (para [22]), without any apology to the mother at the delay (which must in part have been caused by finding a date when he could deal with the matter as a test case). The judgement does not record when the mother made her s 38(6) application; but it must have been before 14 January 2014 (nearly three months after issue of the care application). On that date the case came first before a circuit judge for case management.

Sir James explains the 6-month rule, and that this was – now is – statutory (CFA 2014 s 14). The provision that a care case must come on ‘in any event within twenty-six weeks’ (s 14(1)(a)(ii)) is not ‘some mere aspiration or target’, he says; and then quotes (at [24]) his own somewhat Churchillian fenestral message (his first ‘View from [his] chambers’ [2013] Fam Law 548: by definition this is not an emission prepared after argument has been heard) as follows:

My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks [my emphasis].

But ‘compromising’ (see italics above) is what a judge must be. Resolving a case ‘justly’ (see s 38(7A)) involves compromise. So how does Sir James deal with the case and the unexplained delay? Of the independent opinion witnesses at this stage there were three, all doctors. Two were in favour of the mother having the assessment; and one was neutral, even slightly – though not unequivocally – against. From the mother’s point of view it was two to one in her favour, even 2.5 to 0.5. The common law requires that any judge who disagrees with an expert, should explain why in his/her judgement. Sir James neither reminds himself of the law on this, still less explains his reason for disagreement with his court’s experts.

A statutory check-list: Children Act 1989 s 38(7B)

As mentioned above, the new s 38(7B) provides a check-list for a judge when s/he considers an application under s 38(6) (as with the mother’s application here). Sir James sets out the check-list (at [19]), but makes no further reference to it. He concludes that he already has enough evidence on which to make up his mind (at [43]), and then ignores it or goes against it, in the case of the expert evidence (see previous paragraph).

He looks at the circumstances in which ‘the 26 week time limit’ (at [33]) may be breached, and recalls that CA 1989 s 32(5) now reads:

(5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

He suggests ‘three forensic contexts’ in which a breach of the 26 weeks might be permitted (at [38]): (1) where it is clear from the start that the period may overrun (eg where very difficult issues were clear from the start, or a parent has particular disabilities); (2) where something unexpected emerges; and (3) where an error by one of the parties makes an overrun inevitable. He explains that an example of (1) might be the FDAC (‘Family Drug and Alcohol Court’) type of case based on ‘problem solving by a specialist team’. To work this must be realistic from the start. His conclusion therefore was:

[38] … appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale [emphasis internal]?

Judicial appraisal: evidence based

His appraisal must be ‘evidence based’ (as is to be expected); but we know that he was not invited – as he puts it – ‘to hear evidence from the mother’ (at [5]); nor it seems, before making this finding, did he ask for her to provide any viva voce evidence. The evidence-based nature of any finding by the court is the route of the findings in this case; and Sir James set up this mother not to have a hope as far as that was concerned.

Of the requirement that a court may direct an assessment only if necessary, Sir James says:

[21] For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6)…

He takes for granted that a court will act ‘justly’ – ‘for it goes without saying that any court must always act justly rather than unjustly’. It is truly depressing to record, that I am not so sanguine:

(1)   Sir James failed to give this mother a chance to tell him about where she had got to in her life; so he had not ‘seen the witness’ nor had any ‘evidence based’ means of assessing her. He did not, it seems, even ask for it;

(2)   He did not obey the common law rule of explaining why he differed from the majority of the independent experts;

(3)   He ignored the s 38(7A) checklist – though not law then, it could have provided him with a useful cross check to his decision (eg ‘cost of the … assessment’; welfare of a child likely to be removed from her family for ever (see Adoption and Children Act 2002 s 1(4): neither of these are mentioned); and

(4)   The disposal in this case is riven with the need to balance the rights of the mother (to a fair trial) and the mother and child’s right to respect for their family life (European Convention 1950 Art 8) and to ensure that the grave interference almost inevitable as a result of this decision is justified.

In 1791 the French Legislative Assembly incorporated a provision – the ‘Self-Denying Ordinance’ – that no member of that Assembly could stand again, so that they would not be the interpreters of the laws they had passed. This was shortly after the 1776 US Constitution which fully recognised the separation of powers: legislature, executive and judiciary. Sir James is fond of quoting himself. That represents the common law, and – whatever it says of his modesty – is entirely permissible. However, to adjudicate upon schemes which you have set up administratively, have as near as makes little difference legislated into effect (not Children and Families Act 2014 but many of the rules, practice directions and guidance which comprise the new scheme, are very strongly influenced – if not actually written – by Sir James) and then to adjudicate upon them, suggests an unhappy view of the separation of powers.

A LUTHER FOR FAMILY LAW

Delivery of fair and accessible justice

In October 1517 Martin Luther pinned his 95 theses to the church door in Wittenberg. He translated the bible to his native German (New Testament published in 1522). He explained that priests were unnecessary for intercession between ordinary people and God. His, and later, versions of the bible translated by, for example, Tyndale and in the King James Authorised Version of 1611 were revolutionary. Anyone who could read, or listen to the text read to them, could find out what hitherto only a tiny educated minority could read. In a society where politics and religion were inseparable, and church attendance obligatory, what people discovered was truly liberating; and set sixteenth century Europe on course for politico-religious and civil war.

The bible and other religious literature were written in a language which was foreign to all but a tiny, often cloistered, minority of the population. Law is much the same today (as it has been for many centuries). It is written in a form of English (unlike the Latin Bible); but it is mostly only comprehensible to those – like monks of the fifteenth and sixteenth centuries – who are trained to read it. Thus, like those monks, this favoured minority can impart the foreign language message (for a fee: monasteries depended on lay cash, also) to those who seek its solace (eg clients in need of legal advice).

Courts Act 2003 s 75(5) says that Family Procedure Rules should be drafted in such a way as to ensure that ‘the family justice system is accessible, fair and efficient, and [that] the rules are both simple and simply expressed’. Some parts of that delegated legislation is broadly accessible. Some parts are hopelessly impenetrable: language can be ponderous, sometime opaque; and multiple references to other documents and provisions litter the rules. Frequently – far too frequently – the drafting is neither ‘simple’ nor ‘simply expressed’ in any sense which a modern Martin Luther would accept. Accessibility is worsened by the variety of subsidiary and sub-subsidiary guidance and practice directions: as if the bible depended on variant and other ersatz bibles. I doubt Martin Luther would have encouraged that either.

Family law must be read and understood by people who increasingly do not have access to the priesthood of the law; and who are mostly at a particularly wretched time in their lives. Our ‘pope’ – Sir James Munby P – issues decree after decree (they were ‘bulls’ in Luther’s time) with startling disregard for those who must read them. Sub-subsidiary legislation of dubious lawfulness (‘guidance’) emerges almost daily. Vernacular, ‘simply expressed’ politeness and care for those who must read these things and their world breaks up around them is as far away, as was thought for their flocks from priests in Luther’s time.

Family law cries out for a modern Luther. It cries out for a simply expressed system of law which offers a chance of delivering a system of justice which is ‘accessible, fair and efficient’. 

David Burrows

18 April 2014

Good Friday

JARNDYCE WITHOUT THE TRUST FUND

Return dates and costs on domestic abuse applications

In JM v CZ [2014] EWHC 1125 (Fam), Mostyn J makes a number of helpful remarks about injunctions, undertakings, return dates and costs. A man had obtained a without notice order (it was not explained to the judge why the order was made without notice). The order was to injunct a woman with whom he had an ‘intimate personal relationship… of significant duration’ (Family Law Act 1996 s 62(3)(ea)). The injunction proceedings were eventually compromised by both parties giving undertakings to the court; but not before the applicant man had – initially, and through his solicitors, Charles Russell LLP – refused to settle on such terms (para [20]).

This refusal lead Mostyn J to award costs – ‘the starting point is that the [woman] should have her costs’ (para [23]) which he assessed on a standard basis at 70% of £49,000 (sic): each side had leading counsel and a fixture of a day to argue about costs: an example of Jarndyce (Dickens: Bleak House) without the trust fund, perhaps.

Return date procedure

In the Principal Registry (it seems) injunction orders are made without notice and then not necessarily fixed with a return date. This is unlawful. A return date must be fixed (Family Law Act 1996 s 45(3)). Mostyn J therefore speculated on a procedure for return dates; but then fell into the worst of both administrative judicial worlds (he mentions his civil servant role of drafting ‘standard orders’).

He asked for ideas from the two QCs in front of him as to how a procedure to avoid return date court hearings, and then – on the hoof – took up the idea of one of them:

[13] …. the return date should be listed, say, 14 days after the initial ex parte order had been made but that the respondent ought to confirm in writing, seven days before the return date, both to the applicant and to the court, whether he in fact wished to attend on the return date and to argue for variation or discharge of the order; and that if the respondent failed to write to the court within that period, it would be open to the applicant to notify the court that the return date should be vacated and to invite the court to extend the injunction as a matter of box work.  That proposal seems to me to meet and fairly balance the competing considerations.  Were that procedure to be adopted, the present practice of saving court resources would be preserved but at the same time a respondent who wished to have a full hearing – to which section 45(3) entitles him – would be able to have one. 

In JM v CZ he goes a little outside the ‘standard order’ brief; and he does not do it by the rule in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171 (a case he ignores). In accordance with Bovale he could have formally proposed a ‘gap’ Practice Direction (with perhaps a little more consultation).

He provides helpful ideas; but then leaves practitioners, lay parties and court staff alike not knowing whether this is now a judicially approved procedure, whether it applies only in the CFC (‘Central Family Court’) or around the country; and if so when it is to start. Probably, for now, it is none of these things.

FAMILY COURT – A ‘SINGLE COURT’?

… not if it’s money and in London 

As the Civil Procedure Act 1997 was making its way to the statute book it was pointed out to the then Lord Chancellor, Lord MacKay of Clashfern that the then ancillary relief ‘pilot scheme’ might be unlawful since it was made only by practice direction and applied only to certain areas. He remedied the second problem by Civil Procedure Act 1997 Sch para 7 as follows (he was kind enough to say it was called the Burrows amendment since I had drawn both issues to his attention):

The power to make Civil Procedure Rules includes power to make different provision for different cases or different areas, including different provision—

(a)for a specific court or specific division of a court, or

(b)for specific proceedings, or a specific jurisdiction,

specified in the rules.

The second problem ceased to be such when in late 2000 the scheme was rolled out to cover all courts. 

Courts Act 2003 s 75(4) is much the same as para 7 and, for Family Procedure Rules Committee, it provides thus:

 (4) The power to make Family Procedure Rules includes power to make different provision for different areas, including different provision—

(a)for a specified court or description of courts, or

(b)for specified descriptions of proceedings or a specified jurisdiction.

Nothing is said here of the same power to designate regionally being available to the President alone, or to local courts, or any coterie of judges; and yet we now have a dissident cell within the family court already, namely a body unknown to statute (and therefore, probably, unlawful) with its own rituals as part of a ‘financial remedies unit’ (FRU) at the PRFD.

A slightly breathless note from a member of Resolution’s national committee (Resolution is finally becoming alert to the existence on the family court (the statute creating it received royal assent on 25 April 2013 (yes, nearly a year ago)), records a meeting concerning the new FRU at the ‘CFC’ (ie Central Family Court: another non-statutory body, I believe).

As might be expected there is no – or none yet – reflection by Resolution upon the legitimacy of what is set down (and see s 75(4) above). People are being expected to buy into further and more expensive procedures with no obvious statutory or other legitimate sanction (more court-required documents at FDA and FDR; and an obligatory ‘initial directions’ (ID) appointment (which, as you would expect, comes near the end of the process); and so on.

That said some of the suggestions are very helpful – like telling judges they must observe duties of case management (FPR 2010 rr 1.4 and 4.1) and encouraging judicial continuity.

The changes apply only to financial remedy cases. So will the London branch of the family court slum it with the rest of the family court (it is intended to be expressed always in the singular) in children proceedings; or will the welfare of children in London have a specially gilded arrangement there also? (PS the fee is the same whether you issue in London or anywhere else: so much for the logic of the litigant paying the true cost of his/her litigation.) 

Resolution report of meeting

The changes to the existing system are far-ranging and I thought it would be helpful to circulate them widely as soon as possible.

The Judge was keen to engage with users to discuss the establishment and workings of the Financial Remedies Unit (“FRU”).  You may have seen an article by HHJ Martin O’Dwyer and District Judge Edward Hess about this in Family Law for March (pp344-347). The emphasis is to be on far greater case management by the court than has been operated hitherto.

An explanatory  “letter of Expectations” in relation to the FRU unit should already be being sent out by the Court to both parties with every Form A issued out of PRFD.

It is intended that there is a dedicated FRU e mail address and team, headed on the admin side by Ryan Gallagher [prfd.fru.hmcts.gsi.gov.uk]

The key points of the meeting and of the new scheme were as follows:

·   All financial cases will be heard within the FRU.

·   There will be 7 judges (District Judges and /or Circuit Judges) within the unit dealing full time with financial cases.

·   There will be 3 judges  dealing with FDRs and FDAs every day.  No FDA or FDR should be in the floating list.  If this happens, it should be raised immediately with the FRU Office, Ryan Gallagher, who will report it to HHJ O’Dwyer (or one of his colleagues) and a Judge will be found to take the FDA / FDR.

·   In general, the FDA judge will deal with the FDR, and will be the allocated judge for any and all hearings up to the FDR.

·   At the FDR or in the FDR order the judge who will hear the final hearing will be identified and will then become the allocate judge for all matters between FDR and hearing.

·   In keeping with the move towards standard orders, a pro forma directions order (compliant with the President’s “house rules” has been produced, and is attached).

·   Where a case is going to trial and directions made at FDR are insufficient, there will be an early “Initial Directions” (“ID”) hearing where necessary before the allocated trial judge to deal with any outstanding issues such as the appointment of valuers.

·   Where there has been no ID hearing, there will be a PTR listed 28-14 days before trial in all cases of more than 3 days’ time estimate.

· The clerk in court will have responsibility for drawing up any order(s) following a hearing.  The clerk will provide a direct e mail address to which the order should be sent by counsel or solicitor by 10.00 am the day after the hearing.  If no order is received, the matter will be listed for a 9.30 mention.  All e mails should be copied to the PRFD orders  e mail address (prfd.familycourtorders@hmcts.gsi.gov.uk) [Note: presumably this email address will change after 22 April].

·   An order will not generally be approved which provides for a hearing to be listed on application by one side or the other – a date will be provided at the hearing or the following morning.  The court’s target is to list all trials within 4 months of an FDR and so there are expectations that there will be more flexibility as to continuity of counsel.

·   Bundles should be provided for all FDR, MPS and other hearings. Summaries focussed on the issues should be provided for FDA and FDR hearings.

·   All FDAs will be listed for 30 minutes, and will be listed at 10.00 as at present.  The court’s intention is to start listing them at 10.00 am, 12 noon or 2.00 pm in due course.  1 hour will be made available if Forms G are filed by both parties 14 days in advance saying the FDA can be used as an FDR.  If Forms G are not filed, but an FDR is requested, it will a matter for the Judge to decide whether this can be accommodated

·   However, there will be an accelerated FDA process available where appropriate in the terms of the attached summary.  This enables some FDAs to be dealt with without attendance at court.  Note that any agreed directions must be lodged not less than 14 days before the FDA, and the commitment is to respond within 7 days as to whether the FDA can be avoided or not.  Any issues in relation to Questionnaires (unless very straightforward) will have to have been resolved before invoking this
process

·   Any case summaries / schedules of issues etc must be lodged with the Court in a timely fashion to facilitate FDAs being dealt with within 30 mins

·   FDRs will be listed for an hour as standard, but a longer time estimate of up to 2 hours will be considered where requested at FDA stage or in Form G

·   MPS applications will be listed for 1 hour within 28 days of issue.  If listing cannot accommodate this it will be referred to a Judge to determine when the application should be heard.  If longer than 1 hours is required, the matter will have to be referred to a judge for listing

·   It will only be in wholly exceptional cases that a final hearing will be listed before FDR stag

·  The target (not deadline) for listing FDRs is 12 weeks after FDA

·   The target for a final hearing is 4 months post FDR.  A date will be offered but can be negotiated for the parties/counsel’s convenience

·   Deputies will sit more regularly to ensure continuity

· At FDA and FDR solicitors will be asked to produce a costs budget estimating costs going forward

· Consent orders should be submitted in hard copy, as now, even if they are also e mailed to enable the Judge to have a “soft” copy for amendment. Forms A for dismissal continue to be required, as does the fee on a consent application.  ALL CORRESPONDENCE (electronic or otherwise) SHOULD BE ADDRESSED CLEARLY TO THE FRU UNIT

Moor J has been invited by Munby P to act as liaison judge with PRFD over FRU matters.

Legality of the scheme

So far as this scheme goes outside the rules or any properly designated practice direction is unlawful; and it an order is made as a result of a part of the scheme which is illegal then that order may be unlawful. It is lawyers, especially, practising solicitors who must watch for this.

If a real lawyer Lord Chancellor was personally troubled by a scheme like this in 1997, so should be any lawyers in the Ministry of Justice today (Simon Hughes and Edward Faulks were once practising lawyers).