The recent decision in AXA v BYB (QLR Financial Remedies) [2023] EWFC 251 (B) is the first time in which a qualified legal representative (QLR) was appointed and used in a financial remedies final hearing at the Central Family Court. There had been scant other authorities in respect of QLRs to date – the only other decisions are that of Re A and B (fact-finding hearing – sexual abuse: no QLR available) [2023] EWFC 232 (which dealt with the very narrow issue in private children proceedings as to whether or not a McKenzie Friend could conduct cross-examination in absence of a QLR) and T v T [2023] EWFC 243 (where no QLR was available; therefore neither party was cross-examined and the judge asked such questions of the parties as he felt fit).

Accordingly, this is the first reported decision which directly considers a QLR participating in financial remedy proceedings. It represents a good opportunity for practitioners to review the position on QLRs, both if they are inclined to register for the scheme itself or to consider the best procedures and approach when one may appear opposite them.

Brief background

The case related to a final hearing in a long running financial remedy proceedings between two litigants in person. There was one child of the family, A, and the parties only had the family home as their main asset.

The two salient issues in dispute related to the beneficial ownership of a second property as well as whether there was material non-disclosure on the part of the husband regarding the sale of a property in Iran, which he asserted was entirely the beneficial interest of his mother. One of the key themes of the case was the extreme challenges the court had to face in determining contrary third-party evidence adduced by the parties on the law of a foreign jurisdiction in absence of independent experts.

The final decision was that the wife would effectively have the entirety of the net equity in the family home (for her housing needs and that of the parties’ child), as well as a pension sharing order and maintenance by way of a global order – all on the basis of adverse findings against the husband for his non-disclosure.

We do not propose to analyse the final decision in this case in detail – our focus is only on what considerations arise from the implementation and role of QLRs to assist practitioners who have yet to encounter them in financial remedy proceedings (or any other family proceeding, for that matter).

The law on qualified legal representatives

The role of a QLR is summarised in the ‘Statutory Guidance: Qualified Legal Representative appointed by the court’1 as ensuring that ‘the fairness of the proceedings is maintained, by carrying out the cross-examination which the prohibited party is prohibited from performing’ (p 11). The intention was to prevent alleged abusers from cross-examining alleged victims (and alleged victims from having to cross-examine alleged abusers) in the all-too-common scenario of one or both of the parties being legally unrepresented in proceedings. Uniquely, QLRs are not accountable to the party on whose behalf they are conducting cross examination.

Section 65 Domestic Abuse Act 2021 (DAA 2021) inserted Part 4B into the Matrimonial and Family Proceedings Act 1984 (MFPA 1984). This is supported by FPR PD 3AB and the Statutory Guidance issued by the Lord Chancellor pursuant to s 31Y MFPA 1984. A short summary of the provisions of Part 4B are as set out below.

Under ss 31R–31T, there is an automatic prohibition on cross-examination when:

(1) one party has been convicted of/given a caution for/is charged with an offence against the other party;

(2) there is an on-notice protective injunction in place between the parties; or

(3) One party has evidence of domestic abuse. The list of the specified evidence is found in Sch 3 Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022 (SI 2022/568).

In such circumstances, the court will have to consider the appointment of a QLR if a party is not legally represented.

Even if there is no automatic prohibition, the court may nevertheless give a direction prohibiting cross-examination either on application by a party or of its own motion (s 31U(4)). The test laid out in s 31U(1)(b) states that the court will make such a direction where it appears that:

(1) the quality condition or the significant distress condition is met; and

(2) it would not be contrary to the interest of justice to give the direction.

The quality condition is met if the evidence is likely to be diminished and would be improved with the use of a QLR (s 31U(2)). Quality of the evidence is defined in the statute as ‘completeness, coherence and accuracy’ (s 31U(6)). Coherence is further defined as meaning the ability to give answers which ‘address the questions’ and ‘can be understood, both individually and collectively’ (s 31U(7)).

The second condition of significant distress is met if the cross-examination is likely to cause significant distress and it is likely to be more significant than if questioned by a QLR (s 31U(3)).

The court is to have regard to, among other things, the list of factors set out at s 31U(5). Further, the court must also specifically consider whether there is a suitable alternative means for the witness to be cross-examined or of obtaining the evidence that might have been given under cross-examination (s 31W(2)). FPR PD 3AB, para 5.3 explicitly states that the judge conducting the cross-examination is not a satisfactory alternative. Curiously, the Explanatory Notes to the DAA 2021 include a judge putting questions to a witness as a specific example of a ‘satisfactory alternative means’. The position has therefore always been somewhat confused.

That said, A View from the President’s Chambers: July 2023 at para 16 makes the observation that it is ‘both dispiriting and very concerning that the QLR scheme established by the Ministry of Justice (MOJ) to implement Part 4B seems unable to attract anything like sufficient numbers of advocates to act as a QLR in individual cases.’ This leaves him suggesting at a para 20, ‘[the guidance] does not trump the overriding objective and, where there is no alternative, court may have to revert to asking the questions where that is the only way to deal with the case, justly, expeditiously and fairly in the absence of a QLR.’

A decision under s 31U to direct a QLR is binding until the relevant witness is discharged (s 31V). It may be revoked by the court before then, if it is ‘in the interests of justice’ to do so. If there is an application by a party for revocation, it should only be revoked if there has been a material change of circumstances. No provision exists in Part 4B MFPA 1984 for the termination of a QLR appointment but FPR PD 3AB, para 8.1(b) does permit termination ‘when the court so orders’, although the specifics of any test for this area not given. As the President of the Family Division puts it: ‘Consideration of terminating the appointment of a QLR provides a further opportunity to canvas with the parties any other options, for example, directly instructing an advocate. If a QLR is discharged, short reasons for doing so should be recorded in the court order’ (see A View from the President’s Chambers: July 2023, para 19).

Outside the statutory provisions summarised herein, other supporting documents of interest to practitioners include:

(1) The Statutory Guidance provided by the Lord Chancellor.2

(2) A View from the President’s Chambers: July 2023 (in particular paras 16–20 specifically addressing the state of play with QLRs as already referred).3

(3) For members of the Family Law Bar Association further materials have been provided on the subject of QLRs.

These documents are not binding, but provide a helpful guide for practitioners and judges who are navigating this relatively new scheme.

Practicalities – AXA v BYB

As mentioned, this is the first case where the involvement of a QLR has been reported in a financial remedies case. The court in this case appointed a QLR at the pre-trial review on the basis that there had been cross-allegations of domestic abuse made in both prior Family Law Act 1996 proceedings and in the ongoing Children Act 1989 proceedings. In this instance, the court exercised its power under s 31U(4). Despite the cross-allegations, only one QLR was appointed as the respondent was represented by counsel whose attendance was confirmed for the final hearing.

Many practitioners may well have encountered QLRs in cases to date, though, anecdotally, the experience is still rarer than contemplated.

As part of his judgment in this decision, Recorder Taylor summarised the law on QLRs as we have above. He noted that there may be circumstances where a party could be invited to arrange a QLR for the purpose of cross-examining a witness (s 31W(3) and (4)) but opined that this would be altogether distinct from a court-appointed QLR. If a party were to instruct their own ‘QLR’ by way of a legal representative, ‘… the extent of the role which the legal representative is instructed to undertake will be a matter for discussion between the party and the lawyer in accordance with the standard provisions of the BSB Handbook or the SRA Code of Conduct. This sits in contrast to the role of a court appointed QLR who is not instructed by or responsible to the prohibited party and whose role is necessarily very limited. The role of any legal representative instructed by a party will necessarily be broader than that of a court appointed QLR by virtue of such instruction, as it must include taking instructions and client confidentiality’ at [78].

How might this impact practitioners? The possibility of some sort of services limited entirely to the issue of cross-examination where one has not prepared or been involved in a case at all would engender significant question marks, as the judge correctly points out. There is a lack of clarity as to how privately funded services of this kind, outside court-appointed QLRs, might even work. It is plainly likely, from an ethical and practical standpoint, that few lawyers would be able or willing to offer so specific a service when their wider responsibilities of advising properly on the case might well be hampered. While the provision may exist, it is more likely than not that court-appointed QLRs will need to be relied upon going forwards.

The judge went on to consider that if a litigant in person could not afford a lawyer generally (as was the case for the wife in this instance), it seems unlikely they could afford a curated service purely for the purposes of cross-examination as a ‘not-really-QLR’. Contemplating s 31W(3) and (4), Recorder Taylor considered that this aspect could be subject to brief judicial inquiry at a case management or ground rules hearing – the court’s concern was that any extended examination on affordability would delay the actual appointment of the QLR where needed (at [79]).

In absence of alternative, ‘the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a [QLR] appointed by the court to represent the interests of the party’ (s 31W(5)).

The judge went on to summarise at [83] those responsibilities he regarded as being beyond the remit of a QLR based on the guidance:

(1) taking instructions (as opposed to eliciting information from a party);

(2) asserting client confidentiality;

(3) representing the party within proceedings beyond conducting a cross-examination on ‘the essence’ of the party’s case which ‘may have significant impact’ (Statutory Guidance, para 3.1, quoting Sir James Munby P in Re S-W (Children) (Care Proceedings: Final Care Order at Case Managements Hearing) [2015] EWCA Civ 27 at [57]);

(4) negotiating with another lawyer ‘on behalf of’ the party whose case they will be putting;

(5) making closing submissions; and

(6) drafting court orders.

One interesting point that the court made which thus far has not been subject to any guidance is the question of prospective QLRs’ competence for cases. As described within the judgment, it appears that the demographic of potential court-appointed QLRs is comprised of many junior members of the Bar and it was clear that the QLR in this case needed, entirely properly and in accordance with her professional obligations, to be satisfied that the issues lay within her professional competence. The difficulty was that papers, for data protection reasons, could not be provided to the putative QLR to review in advance of the appointment. This left the putative QLR in this case with the judge’s assurance that she could be discharged of her appointment should the case be beyond her competence (at [88]). This lacuna probably arises because the QLR scheme initially contemplated a wider range of potential advocates at inception.

QLRs, in general, are permitted to seek such further information as is required from the parties or the court to fulfil the role. The comments by the court in this case appear to suggest that the court might even be limited, pre-appointment, in helping a QLR in that regard, though once appointed this may not be an issue. The guidance is slightly nebulous on this point as the provision of relevant information in some instances may be plainly obvious but should not cross the line into pursuing instructions or negotiation. One wonders what other challenges may exist going forwards.

Pitfalls

It is clear that none of the duties summarised by Recorder Taylor at [83] fall within the ambit of a QLR. That is consistent with the extant guidance. Much can be said of the obvious challenges that exist for QLRs as opposed to acting for a party specifically.

Practical considerations arising from this case, which may be relevant in future include:

(1) What is the position on being released or withdrawing from a case? Plainly, this has come about more as a result of the circumstances of junior practitioners taking up the QLR scheme. It seems unsatisfactory, as the court pointed out in this case, that a QLR has a limited ability to engage with papers prior to appointment. There does not appear to be any filtration scheme in place (save for conflict checks prior to appointment only) for potential QLRs in the same way, for example, that Advocate implements initial reviews and considers what level of call is appropriate. Unsatisfactory as it is, should there be further guidance on this point given the reality of potential QLRs?

(2) While the guidance suggests that a position statement or skeleton argument can be prepared by a QLR, it is difficult to see the utility such documents might have to the court when the QLR does not represent a party (the same query has been raised by the FLBA). It feels somewhat unfair for a QLR to be expected to summarise and present a case which they are effectively not permitted to do anyway. It would appear sensible that the party (who remains a litigant in person, QLR or not) is encouraged by judges to continue to prepare their own position statements to supplement any such document drafted by the QLR to ensure that their case is fully set out.

(3) The statutory guidance on QLRs makes plain that: ‘… the qualified legal representative is expected, in most cases, to meet with the prohibited party to elicit relevant information that will form the basis of the cross-examination and inform the drafting of the position statement.’ The FLBA has made the point that ‘conferences’ of this kind are not chargeable under the scheme. While taking instructions is beyond a QLR’s remit, most advocates appreciate that in the ordinary course of cross-examination, there are often pauses to take instructions where needed. It makes sense that a QLR might ‘receive’ some type of instruction in the throes of cross-examination to advance or pursue a particular point in cross-examination, where is the practical limit of this in line with the QLR’s existing obligations?

(4) What is the impact on the long-stated position that points must be put in evidence for them to be advanced in submissions? A QLR does not conduct closing submissions as the scheme ensures they are released after cross-examination is over. If a point is not put, can it still be pursued in submissions? The court needs to show some flexibility, likely by putting questions it feels appropriate to fill gaps in any cross-examination. The thin red line for a QLR in finding a place where a party can still make a point in submissions and put the case for them without themselves making the submissions needs to be contemplated. This is doubly a concern when a litigant in person will not have the QLR present when making their closing submissions.

(5) Could the possibility of specific services for QLRs on a private non-court-appointed basis be better explored by practitioners? It is likely that some commercial imperative may encourage both practitioners on a public access basis or solicitors’ firms to offer this type of service. That is plainly easier said than done, as the court put it in this case. Would such private schemes actually work if the general audience are litigants in person who do not have funds to pay for complete representation in the first place? The FLBA has observed that there does not appear yet to be any proposals by the BSB to require QLRs to complete either public access training or equivalent, which begs a further question – if one can be court-appointed as a QLR, what are the limitations on them being privately appointed as a QLR, if any? It is likely that the litigant would be instructing counsel directly and therefore it should be necessary for them be Direct Access qualified at the very least, but this has not been clarified anywhere so far.

Thoughts for practitioners facing litigants in person who require QLRs

The provision of a QLR needs to feature fairly early in the proceedings. The guidance clearly had in mind that they would be in attendance at pre-trial review hearings, though this may not always be practical.

It is highly likely that litigants in person will be mostly unaware that QLRs are available to them. At the earliest stage, there lies a responsibility for any practitioner to make a party and the court aware of the potential for a QLR. If this a QLR is raised as an issue, the court will consider directing the relevant forms to be submitted by the parties – namely, the EX740 (for those alleging domestic abuse) and EX741 (for those accused of domestic abuse). These forms help parties to set out the information needed for the court to determine whether to appoint a QLR. The benefit of this is that delays can be avoided, particularly given the apparently limited pool of potential QLRs. It would be sensible at least post an unsuccessful FDR for directions to contemplate a QLR. Certainly, a pre-trial review (if there is one) is the latest point where a QLR needs to be discussed.

The other risk is the adjournment of final hearings as a result of unavailability of QLRs. Given A View from the President’s Chambers: July 2023, courts will have to carefully consider the overriding objective – dealing with matters expeditiously and fairly, acting proportionately and ensuring that parties are on an equal footing – before deciding whether to adjourn or default to the approach of a judge putting questions to witnesses in cross-examination. Relevant factors are likely to include how long the case has been ongoing, the nature of the allegations, how complex the issues are that the court is being asked to determine, and any particular vulnerabilities of the parties.

A small but obvious observation – even if the case itself involves no cross-examination on alleged domestic abuse, the prohibitions and rules regarding QLRs still apply. None of the tests require consideration about the subject matter of cross-examination. Thus, even if conduct arguments play no part in the financial remedy proceedings, a QLR can still be required (as happened in this particular case).

As ever, practitioners are encouraged to keep an eye out for developments and continuing guidance. The positive to take away from this decision is the fact that QLRs are of practical benefit to the family justice system as a whole and, when available, can ably perform their duties. The onus, for now, lies on those practitioners and the court to streamline the approach and engage with the question of QLRs at the earliest stages so that hearings can be effective.