… 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 (firstname.lastname@example.org) [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
· 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).