Chair’s Column (Winter 2023)
Published: 21/11/2023 07:00
Once again, I am very pleased to commend to you another issue of the Financial Remedies Journal packed with compelling and engaging material. Peel J looks back on his first year in charge of the Financial Remedies Court (FRC), finding it for the most part in good health, and looks forward to the challenges and opportunities which lie ahead. Firmly in the in tray for him (and for me and many others) is the development of the FRC contested cases portal, which is a learning curve for all of us, but in many ways so much better to work with than the old paper-based court filing system. Improvements continue to be made – the ability to involve intervenors has just been introduced and the better presentation of the documents in what is to be called ‘case file view’ will follow early next year. With the ‘transparency’ agenda firmly still with us, the article by Samantha Hillas KC and Emily Ward, who were both members of the TIG committee ably led by HHJ Stuart Farquhar, gives a really good account of how the committee’s work was done and how they reached their recommendations. Watch out for some imminent announcements of pilot schemes to try out the TIG committee’s recommendations as trailed in the President’s View from the President’s Chambers: July 2023. And for those who were captured by the great Hasan debate on the fate of litigation where a party dies before its end, the contribution by Joseph Rainer and Jennifer Lee helpfully explains the conundrum which the Supreme Court had to address, deciding that it was for Parliament rather than judges to solve the injustices which might arise in a small number of cases.
Formulaic versus discretionary solutions
One theme which emerges from a number of this issue’s contributions is what Peel J has described as:
‘a legitimate debate between: (1) the familiar discretionary exercise which enables the court to alight upon a bespoke solution, but carries with it a degree of uncertainty and, as a result, anxiety, delay and costs; and (2) the desirability of a fixed regime, such as is commonplace on the Continent, which is less flexible but respects autonomy and reduces the nature and scope of litigation.’
This debate, which of course has many gradations, is perhaps at the heart of the work which the Law Commission will be doing in the months and years ahead, illustrated by the article produced by Professor Nicholas Hopkins and Beth Payne. On the same theme, readers interested in this subject can learn from Michael Allum and Clea Amundsen how a largely formulaic maintenance system was developed and works in Canada. The development of formulaic, or even algorithmic, solutions does of course require a large collection of mathematical data. It is disappointing to report that, notwithstanding the now 2-year use of the updated Form D81 – which was designed with the harvesting of data specifically in mind – little progress has been made in putting in place a reliable data harvesting IT project.
TLATA and inheritance cases in the Family Court
As a result of an oversight in the 2014 legislation, the ability to pursue family-style TLATA and Inheritance Act cases in the Family Court was not authorised. Munby P and McFarlane P have both powerfully argued in writing for the correction of the oversight – a step which would require a one-line statutory amendment – yet the issue has not yet excited the interest of any post-2014 government. Until that happens, the Family Court system will have to continue to use sometimes unsatisfactory workarounds. When the problem does arise, judges and practitioners would be wise to read the detailed thoughts of HHJ Evans-Gordon, Nicholas Allen KC and Rhys Taylor on the use of these workarounds.
The Mostyn J valedictory event
The Financial Remedies Journal has already devoted significant amounts of page space to the remarkable legal and judicial career of Mostyn J, which has now sadly reached its end, but I cannot resist drawing the reader’s attention to the account below by Samantha Hillas KC of the magnificent valedictory event which took place on 3 October in the Lord Chief Justice’s court in the Royal Courts of Justice. Present in the court room were almost every major contributor (practitioners and judges alike) to financial remedies law of the past, present and (probably) future. The room was buzzing with a series of brilliant speeches, seamlessly combining substance and humour. A jewel of a memory for all who were present.