Hilary Woodward is a former solicitor and mediator, academic and the about to retire CEO of the Pension Advisory Group. At the launch of the Second Edition of the Pension Advisory Group report, Hilary’s contribution in the field of pensions on divorce was described as ‘incalculable’. She talks to Rhys Taylor about her long career and work relating to pensions on divorce.

Hilary, can you tell me a little bit about your career before you joined academia?

I did my first degree in sociology and social anthropology at the London School of Economics in the mid-sixties. After my degree, I drove a van for about 6 months just to have a complete change! Then I took various research jobs in sociology and psychology such as the Institute of Education, Institute of Psychiatry and the Medical Research Council – that was all good fun.

After a career break, when I had my son, I started working as a casual clerk with a solicitor. He offered me a permanent job, so I decided I’d do the solicitor training. I was admitted in January 1982, having done my training at Hackney Law Centre and Clinton Davis & Co in the East End of London. It was quite tough, especially when you’ve got a young child to look after. It was also pretty frontline stuff. Legal aid then was in good shape, a lot of my work was legal aid and I seemed to have a lot of domestic abuse injunctions and emergency cases to do. Our local county court was Shoreditch and I also spent time in the drafty corridors of Somerset House, then home to the Principal Registry, doing the family work.

I then moved to Bristol in 1987 and took a temporary post with Bristol Social Services’ legal department. I got thrown in the deep end there and sent off to court without any proper briefing. The first person I met there was David Burrows, who was acting for the mother, and he was very chivalrous when I was looking completely clueless in front of the judge! He helped me through it, so I’m forever grateful to him.

I then worked for 3 years in Weston-Super-Mare at a company called Gordon & Penny running, or effectively starting, their family department. And then 3 years later I joined Henriques Griffiths in Bristol and became a partner and ran the family law team. I became an active member of Resolution and the Bristol (what was then) Solicitor’s Family Law Association Committee.

Are there any particular memories you have of characters or cases you did before you moved to academia?

I had a few hairy ones, I have to say! One where I was personally threatened by the respondent in the case. He was alleged to have assaulted my client and set fire to the apartment where she lived with their two young children. He said he knew where I lived and was following me around, that was quite scary. I think he was committed in the end. I had a few wardship cases and I do remember that in my first one the judge told me off by for filing too many reports. It was quite a learning curve, I have to say.

You mentioned you used to work in Somerset House – do you have any recollections of that?

I do have a lot of recollections of standing around in crowded drafty corridors usually with the barristers and the clients. I used to instruct Elizabeth Lawson a lot. I also instructed Chris Sharp who was then a junior, a few times, and several others whose names you might recognise.

Is there anything you’d like to say about how practice differs then to how it changed subsequently?

It’s quite a long time since I’ve been in practice now, but certainly legal aid made a massive difference then. I instructed barristers a lot of the time, when I had less experience. I’m sure that now solicitors would be expected to do much more of the donkey work themselves in court. I trained as a mediator and worked for about 20 years alongside my solicitor practice. Roger Bird was a senior registrar at Bristol County Court and was also a trustee of the Bristol Family Mediation Service that I worked with. Mediation was beginning to gather pace when I started doing it and becoming more mainstream and eventually getting the support of the Legal Services Commission, that made quite a big difference. That’s all changed now, of course.

Why did you make the switch from legal practice to academia?

Initially, I took part in a study that Gwynn Davis was doing at Bristol University and he invited me to assist him with another study he was doing on ancillary relief outcomes, which was also with Roger Bird. He basically encouraged me to think about going into research. I suppose it was something I enjoyed doing. It was a bit like going full circle from my earlier career after my degree and my research jobs.

For the younger readers, could you please remind us who Gwynn Davis is?

He was a professor at Bristol University Law School, not with lawyer background, but he ended up doing a lot of Family Law research and was very highly regarded. He had quite a personal take on the way things worked. He predicted that mediation was going to run into trouble unless it had commercial backing from solicitor firms. He’s retired now. I think he ruffled a few feathers in his time, but he was a very interesting person to work with.

How did you first get into pensions on divorce?

When I was working as a solicitor partner my specialisms were pensions and cohabitation and I got accreditations in those areas. I enjoyed the fact that they were both intellectually challenging as areas of law, something to get to grips with. The trigger was probably when I worked with Gillian Douglas at Cardiff University, after I got fully into the research work. She, Julia Pearce and I went to a weekend multidisciplinary conference at Trinity College that Jo Miles and Rebecca Probert had set up on ‘Sharing Lives, Dividing Assets’. The conference was absolutely fascinating with very high-quality speakers, including Deborah Price who did an eye-opening paper on ‘Pension Accumulation and Gendered Household Structures’. In the course of the discussion about that, Jo questioned why there were so few pension orders – this was probably 10 years after pension sharing had come into force. Gillian Douglas had been encouraging me to find another project to do and I just thought, ‘that’s the question I want to try and answer – why are there so few pension orders?’

You published a paper in 2014 following a significant amount of research – can you tell me how that came about and what the work involved?

Well, it came about out of that conference. At some point I applied for funding from Nuffield Foundation. The project took a year or two longer than planned, as these things have a tendency to do. It was a quantitative and a qualitative study, so we did a survey of about 370 divorce files with financial orders on them at three different courts. We read through the whole file to get every single bit of data we could about the financial background and the orders that were made, and then analysed it. We also interviewed 32 family solicitors and seven District Judges to get the qualitative side of practice. We engaged George Mathieson as a pension expert to assess some of the data that we had. He looked at 100 or so cases and his verdict about a lot of it was pretty damning.

We could see ourselves that the quality of financial disclosure, especially in regard to pensions, was very poor in the majority of files; that the fairness of the orders was unclear or in question; that the rationality of the orders was questionable in about half the cases; that solicitors lacked a lot of confidence in dealing with pension issues on divorce and were desperate for more guidance, either from case-law or from some other source.

There was very little evidence on the files of the use of pension experts but talking to the solicitors and judges, they all agreed that where pension experts had been involved, it had been helpful – cases usually settled more quickly as a result of the engagement of experts.

One of the things that shocked me about it was the lack of training of the District Judges. At that time, of course, we didn’t have the Financial Remedies Court and a huge proportion of most DJs’ work was around children issues, so they tended to choose training to match that. There was very little training on ancillary relief at all, never mind pensions – that came as a bit of a shock to me.

What came across from the solicitors was the resistance of clients to deal with pensions or to agree to instruct an expert mainly because of the time, costs and worry about it being contentious. The common thing which we all know about is wives not wanting to upset the husbands; the husbands being fairly possessive about what they saw as their pensions and not seeing it as a family asset. And there was a strong drive towards clean break settlements which also had an impact on the (low) number of pension orders.

You were later involved with one Rhys Taylor in a paper delivered at the 2015 FLBA conference called Apples or Pears: Pension Offsetting on Divorce – could you tell me a little bit about that?

I went to a seminar in Newbury where, you, Rhys were one of several speakers and I distributed the key findings from my report. We got talking and you suggested getting together to have an experiment about offsetting, because this was probably the weakest area from my research and also from your experience – the differences in offsetting outcomes and valuations were substantial.

We devised three mock scenarios and we approached a number of pension experts. We had 14 who wrote reports as if they were a single joint expert and explaining how they would value an offset in those particular cases. The results were massively divergent, we couldn’t believe the differences. For example, in the middle money case which involved a defined benefit pension, the range of opinion from the experts was between £290,000 and £798,000! We discovered, when we arranged a meeting with the experts to try and work out why these differences were coming out, that part of the reason for the differences was that we hadn’t given sufficient information to the experts when we asked them to do their reports; we hadn’t asked quite the right questions. It became very obvious from our discussions how important the letter of instruction is and how little understanding there was between the pension experts and the lawyers.

And how, on the back of that paper, did the Pension Advisory Group come about?

It was pretty much as a direct result of my research and the Apples and Pears project. We wrote an article in Family Law and gave the paper to the FLBA conference which aroused a lot of interest. The experts that we were talking to were also very enthusiastic about carrying on the discussion, and we could see that there was a lot of mileage and potential in getting together a group of people to try and thrash out some of the more difficult issues around pensions and to produce a guide for practitioners and judges, to help them through the minefield of the area. It’s a very complex area and quite daunting for anybody who doesn’t specialise in it and it became obvious that there was a desperate need for something to guide people through it.

So you and I got together, had several meetings at each other’s houses (this was long before lawyers had adopted use of Zoom) and drew up a plan of the sort of issues we wanted to discuss, and who might be involved in the group. We talked to His Honour Judge Edward Hess and Mr Justice Francis and they got on board. The idea was born, in principle at least, of setting up a group which we called the Pension Advisory Group. At some point, I can’t remember exactly when, I applied for funding from the Nuffield Foundation to pay for the time of our academics and for general expenses.

Can you tell me, what was the mix of people on PAG and how did PAG go about doing its work?

We had a mix of judges, barristers, solicitors, pension experts (which included actuaries and financial advisors) and academics.

Our academics included Jo Miles from Cambridge who was a very well-established researcher in ancillary relief, and Debora Price from Manchester who’s a social gerontologist (and a former member of Coram Chambers). Debora gave us the context within which we were working to understand what was going on in the wider world with pensions and families, especially on divorce.

We also had a mediator and representatives from associations such as the Association of District Judges, FLBA, Resolution, the Family Justice Council, and so on.

Can you describe a little bit about how the work of the original PAG was undertaken before the popularisation of Zoom?

Well, we had face-to-face meetings! We had quite a lot of meetings with the whole group of about 30 people. We also had three overlapping working groups – legal, expert and valuation – and they had numerous meetings. Most members were members of more than one working group so there was feedback between the groups about what was being discussed. There was a vast amount of email traffic. We would then thrash it all out in the whole group meetings if agreement hadn’t been reached in the working groups.

Several members took responsibility for writing up the different sections. We’d all expected the guide to be much shorter than it eventually was, it turned out to be about 170 pages. Jo and Debbie took a lot of responsibility for the final editing. In the course of the project we conducted consultations with professionals working in the field, individuals and organisations. We also published draft reports, which we got quite a lot of feedback on and had focus groups where we talked in depth about what was happening on the ground with pension experts, solicitors and barristers. Debbie also did a survey of practitioners. So we had a lot of input which was all fed into the whole process. We eventually ended up with The Guide to the Treatment of Pensions on Divorce which was published in 2019 and after a lot of slog, hard work, and I have to say huge commitment from most of the members, none of whom were getting paid for their time.

Have you got any observations to make about the benefits of working in an interdisciplinary or multidisciplinary method in the way that PAG did?

Oh, it’s very refreshing in lots of ways – you get different perspectives. If you’re specialising in something and it’s a niche area, you get very involved in the nitty gritty of things. If you engage with other professionals in the field, you get a different perspective on things; you can see that there are slightly different languages for each profession which are not always well understood between them. It was, I think, very helpful to understand in a non-judgmental kind of way what we were each meaning when we were talking about different things, for example, ‘true’ or ‘fair’ value; what the pension experts needed to know if we were instructing them, and what they didn’t want to know; what the lawyers needed to know about how to instruct them, and what the judges needed to know about what was being done and on the ground. Challenging at times but felt very worthwhile.

Can you tell me a little bit about the impact that the PAG has had?

I think it’s been wonderful, actually. We had, within a very short space of time, thousands of downloads of the report from the Nuffield Foundation website (which is where we published it, freely accessible, which is a key requirement of Nuffield). We had formal endorsement by the President of the Family Division and the Family Justice Council, including the President saying that for any dealings with pensions on divorce, people should refer to our Guide as the first step. We had a lot of interest, a lot of engagement, a lot of seminars, articles, blogs. On the whole, very positive feedback. It also led to publication of the Survival Guide published by Law for Life, also known as the Advicenow website – they specialise in drafting guides for lay people, so they have a lot of very helpful guides for couples who are divorcing. Debora Price also obtained funding for a video which was another guide for lay users, people engaging with divorce and pensions on divorce. There have also been quite a few case reports which have quoted the Guide, usually favourably, which is very gratifying.

The Guide was first published in July 2019, and there’s a new Guide now available from the end of the 2023, colloquially known as PAG2. Why did you want to update the report?

I think it was suggested at the launch of PAG1 by Edward Hess that if it was going to remain relevant, we would have to update it from time to time. I had kept a record of all feedback following the PAG1 Guide. So 2 or 3 years later, I suggested to him that we might think about gathering the same or a fresh team to look at changes that had occurred in the interim and also to look at the feedback from users of the Guide as to how useful it is; how much they use it; if they need more guidance on other areas and what are the key areas that they need guidance on?

We carried out a full consultation to get all the feedback and that informed the new Guide. It doesn’t mean to say that we have agreed with everything that people have said, but we have tried to take it all into account and talk about it. Some of the changes, of course, have involved Brexit and new divorce law – surprisingly only modest effects, as far as our Guide is concerned, I would say. Perhaps one of the biggest changes is the Galbraith Tables which is a new way of trying to assess the value for offsetting purposes where full expert reports are not being sought.

And can you briefly describe how the Galbraith Tables came about?

It came up in PAG1 when we speculated if we could have anything such as you have with personal injury claims that practitioners could refer to in order to get some idea of potential value of claims, of offsetting claims.

Is that a piece of work that PAG did itself or did someone come forward?

Jonathan Galbraith came forward as the main author of the Galbraith Tables, as you might guess. There was a lot of discussion in PAG2 about how they might be used and caution about that, but they’re a clear step forward as far as pensions on divorce are concerned.

What are the logistics in organising the meetings for PAG2? Was it easier doing it all via Zoom?

Yes, obviously far less time consuming for people travelling. Most of our meetings for PAG1 were in London and I know there was an incident where you, Rhys, Val Le Grice and various other PAG members got stuck in the lift at the Royal Court of Justice! It’s never easy to get very busy professionals together, all at the same time but it was a lot easier on Zoom than it was getting them up to London.

You’ve now been involved in working with pensions on divorce for between 10 to 15 years with your initial research, Apples and Pears, PAG1 and now PAG2 and the Survival Guide. What are you intending to do once PAG2 has been published?

Retire! Wave everyone gratefully goodbye and wish them well! Oh, but after carrying on disseminating the PAG2 Guide, helping to publish the new Survival Guide and reporting to Nuffield.

And what plans do you have for your retirement?

Well, between PAG1 and PAG2, I have taken up quite a lot of activities and I was a bit stubborn about not dropping them when PAG2 got going, so my life is pretty full. I do Pilates classes, Tai chi, tennis, French and Spanish tuition, volunteering at the village shop, grandchildren, book club and a few other things. I’ll probably do more of those. Richard’s always nagging me to help in the garden! Music maybe, even people are trying to persuade me to sing! I’ll try and keep busy.

Well, Hilary, thank you for your time, and thank you so much for the immense contribution you’ve made to family law.

Thank you very much and I should say I couldn’t have done any of it without the massive support of our chairs, of you, of all the PAG members and the people who fed back into our work, and the Nuffield Foundation, Brewin Dolphin … the list is endless.

Thank you.

Thank you.