A new rule: proposals to settle financial proceedings
A family silk has supported the new Family Procedure Rules 2010 r 9.27A. I had suggested to him that the new rule might be unlawful, in that I knew of no common law principle or statute which permitted such a rule. But the rules committee (Family Procedure Rules Committee: FPRC) had made the rule: it must be OK, he thought. He continued:
Judge: tell me what orders you are seeking today. Lawful? Yes. Judge: tell me what orders you are seeking 7 days before the final hearing. Lawful? Yes. FPR 2010: make your open offer XYZ days before the final hearing. Lawful? Yes. You tell me why that is not lawful, David. [Earlier the QC had called the new rule ‘jolly sensible’]
To answer why the new rule is lawful means going back to some very basic – even ‘trite’ – law. First the proponent of any law must show why it is lawful. QC says he is ‘sure’ it is lawful; but doesn’t say why. Before an Administrative Court judge he would need to do better. I’ve not found a law which says it is.
What does the new rule say:
Duty to make open proposals after a FDR appointment or where there has been no FDR appointment
9.27A.—(1) Where at a FDR appointment the court does not make an appropriate consent order or direct a further FDR appointment, each party must file with the court and serve on each other party an open proposal for settlement—
(a)by such date as the court directs; or
(b)where no direction is given under sub-paragraph (a), within 21 days after the date of the FDR appointment.
(2) Where no FDR appointment takes place, each party must file with the court and serve on each other party an open proposal for settlement—
(a)by such date as the court directs; or
(b)where no direction is given under sub-paragraph (a), not less than 42 days before the date fixed for the final hearing.
Rule-makers powers
Thus this is the rules committee giving itself the power to order something unknown to the rest of civil law. (Under CPR 1998 encouragement to settle is provided by Pt 36. As far as I know, there is no requirement that a party – still less both – are compelled to put forward ‘open proposals’.)
What powers does a rule-maker have power to make rules? To what extent can those rules create law or change law. Can rules – or any other delegated legislation – be made in a way which is unlawful? I ask these questions at a time when in three recent cases the Supreme Court has told FPRC that parts of their PDs are unlawful; so family lawyers – in fairness to their clients – should not be too bland about the lawfulness of FPRC’s exercise of its powers.
And the question arises also at a time where the government are keen to reduce JR powers of the courts. If family lawyers are such a push over, the government and our new Attorney-General will have no worries with us.
As far as I know neither the common law nor a statute provides for compulsion to make ‘open proposals’ in terms of r 9.27A. So what can the rule-makers do to overcome this? In Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 Lady Hale said of rules (at [27]): they cannot ‘change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210 [per Lord Denning MR]’ (and see the same point made by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75).
Powers in Courts Act 2003 ss 75 and 76
What the rule-makers can do is defined by Courts Act 2003 s 75 and 76. This includes that they can ‘modify rules of evidence’; but not to create new law. To that extent – unless there is law I don’t know about which says that rules can compel someone to set out how that person is willing to settle a case – the law is unlawful. It can be challenged on Boddington bases.
So what if you advise your client that there are facts which may yet come out at final hearing which make it impossible for you to be clear as to what offer you can advise be made; and they accept your advice. But you say, the rule says she ‘must’ make ‘an open proposal for settlement’. Rather than instruct you to challenge the rule, your client says, OK let’s makes a proposal and her former husband pays up. The case is all over.
A couple of years later financial facts occur which prove that what you feared, happens. Your client has to risk further costs on a set aside application, and loses. She chose not to cross-examine the husband; so her grounds for her set aside application are thrown out. For most people the idea of putting forward an ‘open proposal’ may be a good idea; but unless the law says so – and a rule is not the law – no one should compelled
Compulsion and illiberality is what modern society is all about. Tories will cut down our freedoms to use court process. Could r 9.27A – in its own small way – be another aspect of that urge to control within the family courts system? In many cases it may be a good idea; but that is what the equivalent of CPR 1998 Pt 36 allows for. To compel something which the law does not require may, indeed, be a malign reflection on our times.
David Burrows
15 February 2020
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