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Ulrike Ramsay summarises the statement on the efficient conduct of financial remedy proceedings of 11 Jan 2022
14 Jan 2022
- On 11 January 2022, Mr Justice Mostyn and HHJ Hess released the “Statement on the Efficient Conduct of Financial Remedy Hearings proceeding in the Financial Remedies Court below High Court Judge Level”. The guidance/rules will have a significant impact on the daily practice of financial remedy practitioners and the key points are summarised below (the full statement, schedules and templates can be accessed here: https://www.judiciary.uk/announcements/notice-from-the-financial-remedies-court/.
- Of particular note is that it is now unacceptable for the court to be presented with competing asset schedules or chronologies. Instead, parties must file a composite case summary, a composite schedule of assets and income, and a composite chronology before any FDR or final hearing (FDAs require a composite case summary and asset schedule).
- Many practitioners will also be pleased to read that the days of having to chase the other side to agree a court order are over, as the statement emphasises the need for court orders to be agreed, drafted and lodged before parties leave the court or, on remote hearings, on the day of the hearing.
- Further, agreement on court orders should be achieved more easily. The statement highlights that orders must do no more than accurately reflect the result of the hearing and recitals should not be used as a means to summarise what happened at court, or set out the parties’ respective positions before or during the course of the hearing. Instead, recitals should be limited to essential background matters.
- The guidance makes it clear that, unless wholly impractical, the applicant must file an allocation questionnaire (see Schedule 3, “FRC3”) and should seek to consult the respondent when completing the questionnaire.
- To ensure judicial continuity, a judge will then be allocated to the case and will hear all hearings (including interim applications but excluding FDRs), or all hearings up to the FDR with another judge being allocated to hear the case thereafter.
- FDAs are listed for 45 minutes (or 60 minutes for complex cases). The date of the final hearing may be fixed at the FDA. The parties can make use of the accelerated paper-based procedure (see Schedule 4, “FRC4”) if directions are agreed.
- 14 days before the FDA, a jointly obtained market appraisal of the FMH together with property particulars and jointly obtained brief indicative material as to the parties borrowing capacities should be filed. The filing of a questionnaire in accordance with FPR 9.14(5)(c) is also required.
- As was mentioned above, a composite case summary (Template ES1) and a composite schedule of assets and income (Template ES2) must be filed the day before the FDA.
- The FDA may be used as an FDR and the court must be notified accordingly so as to allocate more time. In that event, the documents listed in paragraphs 8 and 9 above as well as a composite chronology must be filed.
- FDRs should be listed for 1-1.5 hours in the morning but parties and their advisers must be available the whole day.
- An updated composite case summary (Template ES1), an updated schedule of assets and income (Template ES2) and a composite chronology must be no later than filed 7 days before the FDR.
- Importantly, if advocates, without reasonable excuse, fail to comply with the provision to file agreed asset schedules and chronology, exceed the page limit for position statements or the time for filing position statements, they will risk having their fees reduced (CPR 44.11(1)(b) and section 51(6) Senior Courts Act 1981.
- As with FDR hearings, an updated composite case summary (Template ES1), an updated schedule of assets and income (Template ES2) and a composite chronology is also required no later than 7 days before the final hearing.
- A timetable must be prepared at the PTR or the directions phase of the FDR, allowing sufficient time for judicial pre-reading and no more than 30 minutes for opening. Pursuant to FPR 22.6(2), time for evidence-in-chief is not normally allowed.
- The statement lists different page limits for position statements depending on the type of hearing. Position statements must be paginated, self-contained and cross-reference relevant documents in the bundle without including extensive quotations from documents. They must also contain short details of what efforts the parties have made to negotiate.
- Where authorities are relied on, the preposition of law must be stated first and the relevant part(s) must be identified but extensive quotation should be avoided.
- Position statements should be emailed to the hearing judge (or the court office if no judge has been assigned) by 11:00 on the working day before the hearing and sent to the other side no more than one hour thereafter.
Duty to negotiate
- All practitioners are reminded of their duty to negotiate openly and reasonably pursuant to PD 28A para 4.4. A warning is given in that a failure to make reasonable attempts to compromise cases in open negotiation will be met by costs penalties.
- Practitioners will be aware of the limit of 350 pages for court bundles (PD27A, para 5.1). However, it is important to note that this does not include position statements and the composite documents now required.
- Finally, the statement points out that, unless there is a reasonable prospect that correspondence will lead to a settlement, practitioners should not be expected to respond to emails after 18:00.
Ulrike is a third six pupil at One Pump Court specialising in matrimonial finance and private children workBack to News