PRVATE MANAGEMENT OF FAMILY PROCEEDINGS

Care proceedings: case management delays

In Re W (Children) [2014] EWFC 22 Sir James Munby P asserted that in ‘family proceedings’ the court expects strict compliance with court case management orders; but he fails – as do FPR 2010 – to draw a distinction between care and other family proceedings and between family proceedings and civil proceedings. This is truly unfortunate and can put fairness to the parties, and perhaps possibilities to explore mediation, at risk.

Re W confronted Sir James with a two week delay by Bristol City Council in the filing of their evidence and other documents which meant that everyone else was inevitably late in their compliance with case management orders. The result of this was unsatisfactory, to say the least. Sir James’s frustration is entirely understandable; but this is not the point here. It is the conflation of the different types of proceedings which the civil proceedings rules (CPR 1998 and FPR 2010) seek to cover which is regrettable. Of the terms in which these rules are expressed Sir James said:

[18] I am aware that a recent amendment to CPR 1998 r 3.8, inserting a new paragraph (4), permits this in civil cases:
(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply, the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).
(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.”

He continued, by reference to FPR 2010 r 4.5(3) which he says has no addition equivalent to r 3.8(4) and provides only as follows:

Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time; and
(b) specifies the consequence of failure to comply, the time for doing the act in question may not be extended by agreement between the parties.

Private family proceedings: a different aproach

In Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906 (Court of Appeal review the difficulties of civil litigation parties and their lawyers in the wake of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537) the Court of Appeal reviewed CPR 1998 r 3.8(4) and said:

[41] We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4).

This is not to say that strict rules should not apply in children proceedings. It is to suggest that there must be a greater recognition that the majority of family proceedings are different from care proceedings (Children Act 1989 Part 4). It is to care proceedings only that r 4.5(3) applies – or should apply; though at present FPR 2010 r 4.5 makes no distinction.

If private parties agree that they want time to mediate, or extend the time within which they comply with the requirements of the proceedings then – if no court date is put at risk – then they must be permitted so to do. Rules like FPR 2010 r 4.8(3) are not realistic. A recognition – other than in care proceedings – that private individuals are involved in private proceedings must take priority; and, where a court date is fixed, an approach much nearer to r 3.8(4) and Denton must apply to family proceedings.

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