‘Guidance note: first directions appointments’ – Pirrie and Newbury

A guide to financial relief procedure

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Resolution’s ‘Guidance note: first directions appointments’, 2018 by James Pirrie and Andrew Newbury  provides welcome help from two well-respected lawyers. Practitioners will find it of enormous benefit. It sets out in tabular form the steps a party must take from issue of financial provision proceedings to final order, consent order and appeal (though not, I think, an application to set aside (FPR 2010 r 9.9A)). The remainder – around two-thirds of the guidance – then deals with the various aspects of procedure which confronts a party. It follows from this that the guide provides much more than help only on FDAs.

 

The table sets out only the rules, no law. At first I was surprised at that; but then I realised that the majority of the substantive law provisions on which this procedural aspect of family law relies are almost entirely common law. For example, disclosure, to which I will return, is – except in the case of non-party orders for production (FPR 2010 r 21.2) – entirely a creature of common law. By contrast costs are governed by Senior Courts Act 1981 s 51(1) and ‘rules of court’ (mostly CPR 1998).

 

I say this to stress that a rule – or set of rules, such as FPR 2010 – cannot make law. They can only regulate substantive law: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale said:

 

‘[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.’

 

Disclosure and common law

 

This is important if rules in relation to disclosure are looked at. This is a critical area of procedure and practice for those involved in financial remedy proceedings. The common law is probably best summarised by the underlying duty set out by the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813. In that case there was a consent order, without issue of proceedings. The House of Lords were very clear: the wife in Livesey received an outright transfer to her of the couple’s former matrimonial home. She was under a duty to the court and to her former husband to tell everyone of her intended marriage. The original consent order was set aside. The same rules apply in relation to mediation and to settlement following mediation.

 

However, if Imerman v Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116, [2010] 2 FLR 814 and FPR 2010 Pt 9 is followed, family law is in the odd position that if a case does not settle then notionally at least the duty to disclose is suddenly suspended as if asleep. It does not emerge from that sleep till questionnaires are answered. Of this the Court of Appeal said in Imerman – and without considering duties to disclose where a case is settled, or in mediation:

 

[33]     In relation to these rules we make two general observations. First, that the rules do not provide for any disclosure of information or disclosure (discovery) of documents until a spouse has lodged his Form E. Second, and even more significantly, that the process of disclosure (discovery) of documents both then and thereafter is closely regulated by the rules and, in accordance with the rules, by the court. Although there is a general and continuing duty to make full disclosure of all relevant information, there is, despite the duty imposed on the court by s 25 of the 1973 Act, no duty of general disclosure (discovery) of documents of the kind required in ordinary civil proceedings by the CPR…

 

If the argument went any higher, I wonder if the Supreme Court would agree that Livesey v Jenkins and common law rules could be overridden by a court rule. This goes also for FPR 2010 r 9.19(4) (control of disclosure by the court: that rule, it could be said, is plainly ultra vires what their lordships said in Livesey).

 

FPR 2010 Pt 21 is very light indeed on disclosure (three rules against 23 in CPR 1998: for example family lawyers must go to CPR 1998 r 31.11 for rules (and the law?) on the ‘implied undertaking’ (so essential to Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565)). Those few rules are helpfully touched on by the guide. It is to privilege that they refer in r 21.3 (and a reference to West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm) Beatson J might be useful where a spouse wishes to allege that documents are privileged (see recently Kerman v Akhmedova [2018] EWCA Civ 307)). Non-party disclosure is regulated almost entirely by statute (eg Senior Courts Act 1981 s 34(2) and Bankers Book Evidence Act 1879). Failing that a witness summons to require a person to bring documents to court can be issued (FPR 2010 r 22.2(1)(b)).

 

I concluded my ‘Imerman information five years on’ in Family Law Journal [2015] Fam Law 976, and mostly of documents unlawfully obtained from one spouse by another – or, as in Lifely v Lifely [2008] EWCA Civ 904, by one brother should perhaps disclosed his diary with the truth there recorded – that all is not as the Court of Appeal says, if it is looked at alongside Livesey v Jenkins and Lifely:

 

… it can perhaps be said that successful mediation, the common law and MCA 1973, s 25 (as explained by Lord Bandon in Livesey v Jenkins) all dictate standard disclosure at as early a stage as reasonably possible. Rules and a court form [ie Form E] cannot override this requirement. Beyond that, once a duty to disclose has arisen the further from the crystallisation of that duty to the date when relevant information is discovered unlawfully, the greater the likelihood that the court will order that relevant information be admitted at trail.

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