On 12 January 2022, Mostyn J and HHJ Hess issued the 'Statement on the Efficient Conduct of Financial Remedy Hearings' ('the Statement') which now applies to all financial remedy hearings below High Court level.

The Statement represents a significant change to financial remedies procedure, with new deadlines and additional work to complete ahead of finance hearings. The statement is far reaching, covering everything from allocation to bundling to drafting witness statements and guidance as to page limits. The Statement will no doubt become the new 'go to' document and checklist for all financial remedy practitioners.

This summary blog of the Statement cannot replace reading the Statement in full. A link to the Statement and templates is here.

This blog covers:

1. The new composite documents (templates ES1 and ES2) and deadlines to lodge them
2. Other directions and deadlines to work towards before hearings
3. Other important points covered
4. Practical impact for practitioners

1. New composite documents

First up, we have the composite case summary (template ES1). This is in tabular form and sets out all the key information on the case, including the most basic of information (court case number, parties' names and so on), as well as information as to costs incurred and estimated, alongside a concise summary of the issues in the case.

Next up, is the composite asset schedule (template ES2). It's fair to say that seeing an asset schedule with more than two/three columns has sent some of us practitioners into a bit of a tailspin. The FLBA money and property subcommittee has prepared a very helpful summary on how to use the asset schedule – this is well worth a read and can be found here.

The composite case summary and asset schedule must be filed by the applicant:

• 1 day before the First Appointment
• No later than 7 days before the FDR
• No later than 7 days before the Final Hearing

2. Other directions and deadlines to work towards before financial hearings

In addition to the composite case summary and asset schedule, the Statement sets out extra matters (with timeframes) for practitioners to work towards before financial hearings.

To summarise:

Before the First Appointment

• 14 days before the First Appointment, the following work needs to be completed:
• The applicant is to file a jointly obtained market appraisal for each property used as a family home.
• Each party is to file and serve property particulars (limited to 3) showing what their case is likely to be on housing need for themselves and the other party.
• Each party is to file jointly obtained brief indicative material relating to mortgage capacity.
• Each party has to file and serve a questionnaire.

Before the FDR

• No later than 7 days before the FDR, the applicant must file a composite chronology setting out the key dates of the parties' relationship and litigation.

If the parties are intending to use the First Appointment as an FDR, then they should notify the court as soon as possible, and they must also to lodge the documents the court would expect to be lodged at the First Appointment stage, i.e. the property market appraisals; property particulars; and mortgage capacity.

Before the Final Hearing

• No later than 7 days before the Final Hearing, the applicant must file a composite chronology setting out the key dates of the parties' relationship and litigation.

3. Other important points

The Statement is far reaching. Whilst a huge amount of focus has been on the additional work we need to cover, the Statement also covers a number of other areas, including:

a. Allocation

• Thought should be given to allocation at the point of issuing proceedings.
• Applicants are encouraged to lodge the application with input from the respondent (which will necessarily assist with answering the allocation questionnaire).
• if the case is exceptionally complex and parties think that they will need longer for an First Appointment, they should include this in the allocation questionnaire so the request can be considered from the outset.

b. Bundles

• Strict compliance with PD27A, including:
• Lodging bundles with the court at least 2 working days before hearings;
• Sticking to the 350 page limit (even when using an e-Bundle).
• On page limits, the 350 page limit does not include position statements or composite documents.
• E-Bundles to be prepared in accordance with the General Guidance on E-Bundles.

c. Position statements

• To be filed by 11am on the day before the hearing, and exchanged within an hour of filing.
• Guidance as to page numbers to be adhered to (see below) and an application to be made to the court for permission to exceed the page limits.

d. Orders

• Standard orders to be used.
• Where one or both parties las legal representation orders should be agreed, drafted and lodged before the parties leave court, or on remote hearings, on the day of the hearing, unless wholly impracticable in which case the order should be agreed, drafted and lodged within two working days of the hearing.
• Recitals should not summarise what happened at the hearing, nor the parties' respective positions at the hearing. Instead, recitals should be limited only to the essential background that cannot be a part of the body of the order.

e. Judicial continuity

• Where possible, cases will be allocated to a judge, either with a view to having the same judge at the First Appointment and FDR and then a new judge for the final hearing, or with the same judge conducting the First Appointment and final hearing and a different judge for the FDR.
• If a case has been allocated to a judge, then interim applications can be directed to that judge too.

f. Listings

• First Appointments will usually be listed for 45 minutes, or 60 mins if it appears complicated (on the basis of the allocation information submitted). If the applicant thinks they will need more court time, they should set this out in the allocation questionnaire when issuing proceedings.
• FDRs will be listed for an hour to an hour and half unless the court at the First Appointment says a longer or shorter period is required.

g. Page limits

• The court is definitely encouraging parties to focus on the key issues and narrow the issues before the court. That approach is highlighted by the guidance on page numbers:
• Position statements
• 6 pages for First Appointment
• 8 pages for interim applications
• 12 pages for FDRs
• 15 pages for final hearings
• Questionnaires
• 4 pages, unless the case is very complex and even then the court will need to approve that longer document.
• Witness statements
• Should not exceed 15 pages (excluding exhibits). Whilst PD27A still sets the page limit as a 25 page maximum, it's clear that the courts are moving away from that longer page limit and, in fact, some judges are imposing very strict, and shorter again, page limits on parties to proceedings.

And: there's more, including a useful note on wellbeing and a reminder on the duty to negotiate openly.

4. Practical impact on practitioners:

a. Diarise, diarise, diarise!

We are going to need to be quite strict about remembering to diarise these new deadlines before hearings.

Time will also need to be factored in to work on agreeing as much of the contents of the template documents in good time of the hearings.

b. Timing

This statement applies now to all financial remedy cases.

c. ADR?

The limited amount of court time allocated to parties for FDRs is likely to lead to more clients looking into other options (such as Private FDRs) where the money is available. The option to have a judge available all day rather than just, say, 90 minutes is obviously far more attractive.

d. Consequences

The Statement makes clear that:

'It is unacceptable for the court to be presented at the FDR or the final hearing with competing asset schedules and chronologies.'

It seems likely that judges will be quite unforgiving in cases where no effort has been made to ensure the court has the documents it needs for each hearing: there are several references within the Statement to the need for parties to be able to explain why they have not followed the guidance in the Statement (e.g. in providing market appraisals and in complying with the page limits for position statements).

The Statement also contains another reminder of the duty to negotiate openly and reasonably, with a warning that 'whatever the size of the case, a failure to make reasonable attempts to compromise cases in open negotiation will be met by costs penalties'.

Concluding comments

What is clear from the Statement is that there is a judicial push for parties to narrow the issues between them and to collaborate from the earliest possible opportunity. Asking parties to start looking at property particulars and mortgage capacity options from the First Appointment is likely to focus minds on settlement options at an earlier time than the FDR which can only be a good thing.

Given the very significant backlog in the family court, it's not surprising that a firm Statement has been issued making crystal clear that the court will not be impressed if court time is wasted on having to try and agree figures on an asset schedule or when faced with two parties who have made zero effort to collaborate ahead of the next hearing. There will, of course, always be exceptions to the rule (it being well known that attempts to collaborate with serial non-disclosers is a thankless task) but in the vast majority of cases, parties need to start working together from a much earlier point in proceedings.

Kathryn Cassells, Associate Solicitor, Vaitilingam Kay Solicitors