Exceptional case funding for the vulnerable and a ‘statement’ for high net worth cases
In the first half of July 2015 two documents emerged for consideration by family lawyers. It is worth reflecting on their significance for family law litigants, for family lawyers and for the rule of law. I refer first to the judgement of Collins J in IS v The Director of Legal Aid Casework & Anor  EWHC 1965 (Admin) given on 13 July 2015; and secondly to a ‘statement’, ‘revised’ and reissued on 1 July 2015, by – it says – the Judiciary of England and Wales and entitled Statement on the efficient conduct of financial remedy hearings allocated to a High Court judge whether sitting at the Royal Courts of Justice or elsewhere (the FR statement: http://www.familylaw.co.uk/system/redactor_assets/documents/3081/Financial_Remdies_-_transfer_to_HCJ_-_efficient_conduct_-_1_7_15_.pdf).
In the case Collins J develops the common law by explaining what the exceptional case funding (ECF) scheme under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10 and revised Lord Chancellor’s guidance (under LASPOA s 4(3)(b)) has still not complied with what Parliament intended. Collins J was particularly concerned for the legal aid rights of the vulnerable and those lacking capacity.
The FR statement could have been – I say it should have been – issued legitimately as practice direction alongside FPR 2010 rr 1.4 and 9.15 (court’s case management duties). It relates to case management in higher net worth matrimonial finance cases (£15M+ total assets). It records that Mostyn J, the author of the document, is ‘authorised by the President [Sir James Munby] to release this statement’ (§1). (The President has full statutory powers to issue Practice Directions; and he chairs the Family Procedure Rules Committee (FPRC) which is responsible for making rules for family proceedings (Crime and Courts Act 2013 s 75(2)).
Legal aid: case law reforms
In https://dbfamilylaw.wordpress.com/2015/07/17/mr-justice-collins-and-is-v-laa-good-news-for-family-lawyers/ I recorded that the score for civil legal aid case law (LA Apps v LAA) was 5-2 against LAA (the Lord Chancellor). IS is one in what will no doubt be a continuing legal battle between the Lord Chancellor and his judges as they explain to him that – even by his own, and his now politicised civil servants’, standards – he has got wrong what Parliament told him to do in LASPOA s 10 (the safety net designed for those who are no longer entitled to civil legal services under the 2013 scheme). It is a remarkable struggle to watch – especially when judges like Collins J is out in the field; but it is depressing also to find that the government minister entrusted with the rule of law is so frequently found to be acting illegally.
I explain how I arrive at the 5-2 score in https://dbfamilylaw.wordpress.com/2015/07/17/mr-justice-collins-and-is-v-laa-good-news-for-family-lawyers/; and this does not include King’s Lynn and West Norfolk Council v Bunning  EWHC 3390 (QB) and Brown v London Borough of Haringey  EWCA Civ 483 where the Lord Chancellor was criticised for the opacity of his scheme for legal aid for committals (recently, it is to be hoped, clarified: as explained here http://legalaidhandbook.com/2015/06/21/applying-for-legal-aid-for-contempt/). In my above blog and at http://www.familylaw.co.uk/news_and_comment/exceptional-case-funding-lord-chancellor-must-still-do-better#.Vaoi6_mqqko I have discussed IS. The legality of the FR statement must now be considered.
Legitimacy of the FR statement
The statement seems to do what its title suggests. I do not know how many anticipated contested cases it covers; but it cannot apply to a case unless ‘The overall net assets exceed £15m’ (§3(1)), perhaps only if more. It seems to me, the ‘statement’ only deepens the veneer of illegality (Council of Civil Service Unions v Minister for the Civil Service  AC 374 per Lord Diplock) which shrouds the financial relief procedural rules. Family finance lawyers live with it, it seems; but the rules which they allow their clients to undergo are riddled with illegality; and this FR statement only adds to that.
One thing that the spate of legal aid cases against the Lord Chancellor must have taught family lawyers is always to be sceptical of delegated legislation. Has the body which produces that legislation got power so to do? IS explains why the Lord Chancellor guidance does not comply – still – with statute law.
For the making of family proceedings rules FPRC’s powers go no further than Courts Act 2003 ss 75-76 (eg they may ‘modify’ rules of evidence: s 76(3): no more); and yet amongst the errors in FPR 2010 Part 9 (and its supporting rules) are the following:
- FPR 2010 r 5.2 deals with filing of a financial statement (Form E). Documents must be filed as set out in the rule (and as Blake J noted in Kings Lynne (below) a form cannot change the law). These documents include:
- A valuation of matrimonial assets and eg any business. Basic common law principles make it clear that that valuation information is covered by litigation privilege (Waugh v British Railways Board  AC 521); and only the person to whom the valuer has reported can waive privilege.
- Value of a property which a party seeks: the court is not entitled to insist on such an admission, which might in a minority of cases prove a hostage to fortune
- FPR 2010 rr 9.15(2) and 9.16(1) are hopelessly ultra vires. They are obviously against the law as set out in MCA 1973 s 25(1), as explained by the House of Lords in Livesey (formerly Jenkins) v Jenkins  AC 424,  FLR 813. Fortunately no one who is legally represented takes any notice of these rules; but what if a keen litigant in person insists upon them? Will a district judge have to say: well, yes, you are right Mr/s X; but don’t take any notice of those rules – they’re not lawful.
- Denying a person the right to refer to a Calderbank letter by a rule change – ie the rule represents the overriding public policy by a MoJ committee whose brief is defined by Courts Act 2003 s 75? Maybe that’s legal (even if illiberal) but it surely sails close to a legality wind?
Making the law
This is not the place for a detailed discussion of how the law is made; but it is worth recording the following outline (offered at a level applicable at law school):
- Primary law: our law is based in the common law. This and statute law is what I term ‘primary law’.
- Common law can be overridden by statute expressly or by implication; or, as is often the case, by a statute putting into Parliamentary words what was, or often remains, the common law (see eg Administration of Justice Act 1960 s 12(1)(a) for private trials of children proceedings or Proceeds of Crime Act 2002 s 330(10) for a definition – in that context – of ‘privileged circumstances’).
- Statute may empower Ministers or other bodies (eg FPRC: Courts Act 2003 s 75) to make regulations or rules ie delegated legislation.
- In the civil litigation context Constitutional Reform Act 2005 enables certain defined individuals (mostly the Lord Chief Justice, but also the President of the Family Division) to make practice directions (as explained eg in Secretary of State for Communities and Local Government v Bovale Ltd and anor  EWCA Civ 171).
- Statutory ‘guidance’ (Lord Chancellor guidance, under LASPOA 2012 s 4, was at issue in R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors  EWCA Civ 1622; and many children lawyers will be familiar with the guidance contained in Working Together (March 2015)).
- The common law comes into the frame again, where judges – mostly at High Court level – explain what any of the above mixture of primary and delegated laws mean in a given situation and where two or more parties cannot agree.
- Below this we enter the murky area of ‘practice’ and other non-statutory ‘guidance’; protocols (there are a variety of protocols which accompany CPR 1998); and now, it seems, ‘statements’.
So far as any of the instruments at (7) are concerned their authoritative basis will always be debatable. They are not statutory: compare eg the guidances at (5) which is prescribed in an Act of Parliament; or as a practice direction – if properly made – will have a legal basis. Bovale above explains this point. The authority of the Munby/Mostyn FR statement, seen in this light, is limited (and could as well be done properly by a practice direction alongside FPR 2010 r 9.15(5)(c).
This hierarchy of authority applies in all contexts, whether a legal adviser or other reader is looking at delegated legislation or guidance under eg LASPOA; as it does to the rule-making and other regulatory powers of our family law administrators (a job often taken nowadays by senior judges).
‘Illegality’ and rule-making
‘Illegality’ was explained in the administrative law context by Lord Diplock (and thirty years later the definition holds good) in Council of Civil Service Unions v Minister for the Civil Service (above):
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
Once a judge puts out a statement like the financial remedy statement, he does not do so as a judge, any more than the Lord Chief Justice or the President act as judges when they make practice directions. Judges take on a hybrid capacity: they become legislators when they make practice directions or administrators (part of the executive) when they define case management. They are civil servants, or functionaires in France or aparatchicks in more authoritarian regimes.
In administrative law terms High Court judges become decision-makers. They must ensure that they have the statutory power to make their decisions; and their decision-making powers – like those of any other functionary – can be challenged before a High Court judge, as Lord Diplock explains above.
Sir James Munby P and FPRC have ample powers to frame delegated legislation (respectively practice directions and family proceedings rules). They do not need another functionary – like Mostyn J, in this context – to frame any further sub-subsidiary legislation.
Fiddling with £15M assets while legal aid Rome burns
I return to a comparison of family law’s concerns with the vulnerable and financially needy and with those who are arguing over £15M, and often much more.
A series of senior High Court and Court of Appeal judges (only a couple of them with any known family law practice) have in a series of very carefully argued judgements developed the common law, legally and authoritatively in the area of exceptional funding (much of it in relation to, or directly affecting, family proceedings). These judges include Collins J (x 2) in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor  EWHC 1840 (Admin) and IS (above); Blake J in King’s Lynn and West Norfolk Council v Bunning  EWHC 3390 (QB); Beatson LJ and Ousely J in R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor  EWHC 523 (Admin), Green J in R (ota Letts) v The Lord Chancellor & Ors  EWHC 402 (Admin); and half as many cases again in the Court of Appeal.
Mostyn J and Sir James Munby P have made the obiter comments on legal aid. They are of force but no enforceability. For legal aid litigants they butter no parsnips (unlike eg the judgments of Collins and Blake LJJ and the Court of Appeal). They have spent many hours over case management of high net worth cases. If their joint efforts had been directed to producing a ‘statement’ – concurred in, preferably, by all Family Division judges – on how to deal with ECF or legal representation for vulnerable parties (both subjects covered by Collins J in his 30+ page judgement in IS) then perhaps the cause of family justice for the many (not just the few whose assets exceed £15M+) might be further forward.
And it must be recalled: the findings of the High Court, the Divisional Court and the Court of Appeal on questions of legal aid, referred to throughout this article, represent the common law. They are put out by Senior Courts judges of the highest calibre in open court often after detailed legal argument by specialist lawyers. The financial remedy statement is not the law. It is but a document produced by one more senior Ministry of Justice civil servant.