Introduction

The Family Court does not have Trusts of Land and Appointment of Trustees Act 1996 (TLATA)1 jurisdiction.2 This creates a particular problem for proceedings in a Family Court which is not also a county court, most obviously the Central Family Court (CFC) in London. This article, although not limited to proceedings in the CFC, includes some specific discussion about how the problem can be dealt with there.

TLATA claims therefore must be issued in either a county court or the High Court; the two courts have concurrent jurisdiction.3 Such claims cannot be issued in the CFC given that it is not also a county court. The same applies to the Family Court at East London.4 This contrasts with the Principal Registry of the Family Division (PRFD; the predecessor of the CFC) which, being part of the High Court, had TLATA jurisdiction.

If a TLATA claim is to be heard together with a Matrimonial Causes Act 1973 (MCA 1973)5 or a Children Act 1989 Sch 1 (CA 1989) claim, both claims need to be heard at a combined county court and Family Court centre or in the High Court.

Fact-finding/declaratory jurisdiction

It is, however, suggested that the determination of what is (or what is not) within the court’s dispositive powers as ‘property/financial resources’ under the MCA 1973 is within the jurisdiction of the Family Court, given the express reference to the same under the statutory checklist. In determining what property or resources are available, the Family Court applies constructive/resulting/implied trust or estoppel principles, such principles being universally applicable when determining property rights. This is so whether the issue is dealt with as a preliminary issue in accordance with the guidance in TL v ML & Ors (Ancillary Relief: Claim Against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263 in advance of the final hearing6 or otherwise.

By virtue of MFPA 1984, s 31E(1) in any proceedings in the Family Court the court may make an order which could be made by the High Court or the county court if the proceedings were in that court. This includes the power to make a declaration.7

On this basis the Family Court has the power to make a declaration as to beneficial interests (as that is determining ‘property/financial resources’) without the jurisdictional issues above arising as the Family Court is not exercising TLATA jurisdiction.8

Having determined the beneficial ownership of a property the declaratory relief will be binding against the whole world, not just the parties and intervenors to the claim.

Support for this proposition is drawn from Tebbutt v Haynes & Anor [1981] 2 All ER 238 per Lord Denning MR at 242:

‘The wife’s claim before Hollings J was a claim under s24 of the Matrimonial Causes Act 1973. It was for a transfer of property as between husband and wife. Nevertheless in this case, unlike most other cases, there was an intervenor. Mrs Tebbutt claimed that “160 Hoppers Road is a house in which I have a considerable interest”. Because she made that claim, she was quite rightly brought in as an intervenor. It seems to me that, under s24 of the 1973 Act, if an intervenor comes in making a claim for the property, then it is within the jurisdiction of the judge to decide on the validity of the intervenor’s claim. The judge ought to decide what are the rights and interests of all the parties, not only of the intervenor, but of the husband and wife respectively in the property. He can only make an order for the transfer, to the wife, of property which is the husband’s property. He cannot make an order for the transfer to the wife of someone else’s interest. So, in order to make an order under s24, it must be within the jurisdiction of the judge to determine what are the various rights and interests in the property not only of husband and wife but also of any other persons who claim an interest.’

And per Brightman LJ at 245:

‘It was canvassed before us that the Family Division had no jurisdiction to decide property rights under s 24 … I cannot think it is right. It is fundamental to the s24 jurisdiction that the judge should know over what property he is entitled to exercise his discretion. If there is a dispute between a respondent spouse and a third party as to the ownership of a particular item of property which stands in the respondent spouse’s name, that dispute must be resolved before the judge can make an effective final order under s24. There are only two ways of resolving such a dispute. Either the Family Division proceedings must be adjourned pending the trial of the claim in other proceedings, or the dispute must be decided in the s24 proceedings by allowing the third party to intervene. The latter course was adopted in the instant case. It has not been suggested, and I do not think it would be right to suggest, that the court had no jurisdiction to permit Mrs Tebbutt to intervene. There could be no purpose in her intervention except to decide the dispute. I think that in a case like the present the Family Division has jurisdiction under s24 to decide property rights.’

Obviously, Brightman LJ refers to the ‘Family Division’ but on this logic the same applies to the Family Court as it carries out the same s 24 exercise and may make the same orders as the High Court.

In TL v ML & Ors (Ancillary Relief: Claim Against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263, Nicholas Mostyn QC (sitting as a Deputy High Court Judge) stated:

‘[33] It is well established that a dispute between a spouse and a third party as to the beneficial ownership of property can be adjudicated in ancillary relief proceedings: see Tebbutt v Haynes [1981] 2 All ER 238, per Lord Denning MR at 241 …

[34] It is to be emphasised, however, that the task of the judge determining a dispute as to ownership between a spouse and a third party is, of course, completely different in nature from the familiar discretionary exercise between spouses. A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division.’

Further support for this proposition is found in Baker v Rowe [2009] EWCA Civ 1162, [2010] 1 FLR 761 per Wilson LJ (as he then was):

‘[23] … Ever since the decision of this court in Tebbutt v Haynes [1981] 2 All ER 238, it has been recognised as convenient that a third person who asserts a beneficial interest in property which is the subject of an application for ancillary relief following divorce should either be permitted as an intervenor, or ordered as a further respondent, to make his assertion within, and thus as a party to, the application, rather than that the existence or otherwise of his alleged interest be determined in separate proceedings in a separate court at a separate time, with the consequential risk of inconsistent decisions …’

In Goldstone v Goldstone & Ors [2011] EWCA Civ 39, [2011] 1 FLR 1926, Thorpe LJ emphasised that in exercising such fact-finding/declaratory jurisdiction although the substantive law may be property law, the procedural rules to be used are the FPR rather than the CPR:

‘[39] Of course, the ultimate trial required the family division judge to apply the law of property and the law of sham just as his brother judge would do in the Chancery Division. Careful preparation for that trial was necessary. However, these impeccable directions do not require or permit the import of the CPR. In its essence the claim remains a claim by the wife against the husband. Ultimately it is a claim for discretionary relief. In this, as in many cases, there must be a preliminary issue trial to establish the extent of the assets over which the discretion is ultimately exercised. Here, as in many cases, the preliminary issue trial determines the claims and the rights of third parties. The preliminary issue trial is pendent on the originating application. It has no independent existence.’9

A similar view was expressed by Hughes LJ:

‘[66] It is certainly true that the law to be applied to the issue between the wife and the Jeeves respondents differs importantly from the law to be applied between husband and wife. On the ancillary relief claim, as between wife and husband, the court is required to perform an essentially inquisitorial and then discretionary exercise, pursuant to ss 23–26 of the Matrimonial Causes Act 1973. When determining the issue between the Jeeves respondents and the wife as to who owns what and what if any control the husband retains over the assets in question, the court is not performing a discretionary exercise but is determining issues of property law and associated fact. It is salutary for family practitioners to keep the distinction clearly in mind. … the issues between the wife and the Jeeves respondents … will have to be determined according to ordinary principles of property law in exactly the same way as they would be determined if they arose in free-standing Chancery proceedings. But to say that is not at all the same thing as to say that they must be separated from the family proceedings to which they are directly critical. The latter proposition would tend towards a reversion to the forms of action and to the days before the court unification accomplished by the Judicature Act 1875. If the interests of justice are served by it, the same judge can and should determine both of them, and the rules of court are designed to enable him to do so.’

In Edgerton v Edgerton and Zaffirili Shaikh [2012] EWCA Civ 181, [2012] 2 FLR 273, the guidance given in TL v ML & Ors (Ancillary Relief: Claim Against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263 was endorsed by Lord Neuberger of Abbotsbury MR (in a judgment with which Rafferty LJ and Sir Mark Potter P agreed). He stated as follows:

‘[52] … while there will, of course, be cases where the Family Court judge will direct that a preliminary issue as to ownership of assets, involving a third party, be heard in another Division as a preliminary issue, the better course is normally for the Family court to determine the issue – see TL v ML [2006] 1 FLR 1263, paras 33 – 36; A v A [2007] 2 FLR 467, and Goldstone v Goldstone [2011] 1 FLR 1926. Continuity of judicial involvement is desirable both for efficiency and for consistency of decision-making. There will be cases where it may be appropriate to hive off some issues and send them to another Division of the High Court, but it should only be when relatively technical issues, outside the familiar family law territory, are likely to be raised and to play an important part.’

There is also relevant comment in Behbehani v Behbehani & Ors [2019] EWCA Civ 2301 per Baker LJ:

‘[68] The principal point in dispute in Goldstone was whether an issue between one of the parties to matrimonial finance proceedings and a third party as to the beneficial ownership of an asset subject to a claim for a property adjustment order within the matrimonial proceedings should be determined as a preliminary issue within those proceedings or in a separate civil claim. This court endorsed the procedure identified in TL v ML, supra, for the determination of third party claims within the family proceedings.

[69] I do not, however, read the decision in Goldstone as endorsing the proposition that whenever an issue arises in matrimonial proceedings as to whether a party is entitled to an asset it is always necessary to join every other person who asserts title. It all depends on the circumstances. If a spouse is seeking the transfer of a particular asset from the other spouse and it is asserted that the asset is the property of a third party, then it would usually be appropriate to join third party for that issue to be determined at or before the financial remedies hearing. That is what happened in Goldstone itself. But there are many cases when the claimant spouse, usually the wife, is not seeking a property adjustment order but another form of financial relief, for example a lump sum, on the basis of an assertion of the value of the husband’s wealth which he disputes on the grounds that assets which she ascribes to him are in fact the property of a third party. As a glance of the law reports shows, it frequently happens, particularly in so-called big-money cases, that the court is faced with a number of issues as to the ownership of assets with a variety of third parties identified as the beneficial owners. It would be wholly disproportionate to insist that, even where the wife is not seeking the transfer of the assets, all such persons should be joined to the proceedings and the issue of ownership determined before any financial remedies order can be made. There may be cases where joinder is appropriate in those circumstances, but it should certainly not be the rule.’

On the above basis, all judges sitting in the Family Court (including the CFC/FRC) can exercise this fact-finding/declaratory jurisdiction and therefore third-party interventions (by, say, family members seeking a declaration as to a beneficial interest in properties) can be heard and determined.

Procedural issues

Procedurally such claims are often ‘intervenor’ claims. For example, a third party appears at (say) a first appointment claiming a beneficial interest in respect of a property and seeks to be joined as a party or the husband or wife assert a beneficial interest on behalf of a third party at a first appointment. In both cases the court will consider whether it is desirable to notify the third party and/or to join them as an intervenor. It will usually direct service of the Form A, etc upon the third party and then, if appropriate and proportionate, join them as intervenor/second respondent, etc, having given them an opportunity to be heard (see Behbehani above).10

If, however, the third party has commenced their intervention by way of a free-standing TLATA claim in a county court (i.e. by the issue of a CPR Part 7 or Part 8 claim form), the position is procedurally more complex. Such a claim cannot be transferred to the CFC/FRC to be heard with the MCA 1973 proceedings given this court’s lack of jurisdiction. In practice, an application ought to be made by the parties to the county court for its proceedings to be stayed pending the determination of the beneficial interest intervention in the CFC/FRC. The county court proceedings can then either be dismissed on the grounds of res judicata/issue estoppel or restored for the purpose of enforcement by way of order for sale (see further below). The CFC/FRC judge can direct that the pleadings and evidence (if any) in the county court claim stand in its proceedings.11 In the unlikely situation that the parties refuse to seek a stay of the county court claim then a Hemain12 injunction restraining the relevant party from pursing the same could be granted.

Non-declaratory orders

Assuming the above analysis is correct then there remains the separate issue as to the position if the Family Court needs to make a further order beyond a declaration as to property ownership in respect of property partially beneficially owned by a third party (e.g. an order for sale).

The power to order a sale under MCA 1973, s 24A(6) only arises when the court makes an order under s 22ZA or, under s 23 or s 24, a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order. Such an order can only: (a) be made in favour of a party to the marriage; and (b) relate to property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion).13 If the third party is the sole beneficial owner of the relevant property, the Family Court has no power to order a sale or to require the occupants to give up possession as it is not property over which the Family Court can exercise jurisdiction. Arguably, the court cannot (or at least should not) order the sale of a property if neither of the parties to the marriage wants a sale and/or no orders are being made which require a sale.

If the court makes an order for sale in favour of a party to the marriage then the third party’s interest will obviously be realised. However, in the (probably rare) circumstances where either the court does not make an order to which the order for sale power arises and/or the declaration is that neither party to the marriage has an interest in the relevant property then a free-standing application may need to be made pursuant to TLATA, s 14. Such an application cannot be issued by the FRC at the CFC (nor can such an order be made by it) and would need to be issued and heard by the relevant county court (unless one of the ‘workarounds’ set out at paragraph 22 below is adopted). If there are stayed proceedings in the county court, this will be a relatively straightforward process as the declaration made by the Family Court as to beneficial interests will be binding on the whole world (supra).

Pure TLATA claims

If given the nature of the claim (or the issue raised at paragraph 21 above arises) the CFC/FRC is required to exercise ‘pure’ (as opposed to fact-finding/declaratory) TLATA jurisdiction, there are several potential ways around this in practice:

1. there are CJs (with s 9(1) authorisation – CJs Evans-Gordon, Harris, Hess and Oliver) or DHCJs (s 9(4) appointments). The case can be transferred to the High Court and allocated to such a judge sitting in the PRFD at First Avenue House;14
2. in November 2020 the President of the Family Division appointed all the then full-time CFC DJs – DJs Cronshaw, Hudd, Jenkins and Mulkis – as Deputy DJs (PRFD).15 The case can be allocated to such a judge, again sitting in the PRFD at First Avenue House; and
3. there remain a few remaining ‘legacy’ PRFD judges from the time of their original appointments, such as DDJs Hodson, Morris, O’Leary and Todd. Again, the case can be allocated to such a judge.

CA 1989, Schedule 1

It would be logical for the same analysis to apply to CA 1989, Sch 1 proceedings as has been set out above in relation to MCA 1973 proceedings. The authors are unaware of any case law to similar effect to Tebbutt v Haynes & Anor [1981] 2 All ER 238. However, query why it should not apply by analogy given that Sch 1, para 4(1) refers to the ‘property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future’ which (in effect) is in identical terms to s 25(2)(a) – although of course the computation/distribution exercise is different under the two statutes. In any event there is no analogous ‘order for sale’ provision in CA 1989, Sch 1.16

Extending the jurisdiction

The issues and anomalies in this article would not arise if the Family Court were to have TLATA jurisdiction.

Similarly, claims brought under the Inheritance (Provision for Family and Dependants) Act 1975 must be issued in: (a) the Chancery Division or the Family Division (CPR 57.15(1)); or (b) county courts where there is a Chancery District Registry (CPR PD 57.2). The Family Court does not have jurisdiction (whereas, again, the PRFD does).

Extension of the jurisdiction of the Family Court in these two ways has been advocated on a number of occasions.

In the Civil Court Structure Review: Final Report dated July 201617 by Briggs LJ (as he then was), he said as follows:

‘Civil and Family

11.4. In IR 11.2–7 I provisionally recommended that the Family Court be given Inheritance Act and TOLATA jurisdiction, so as to put right what appeared to have been an omission at the time of the creation of that court. I recommended it as a shared rather than exclusive jurisdiction because, in relation to both those types of claim, there is a broad spectrum between claims closely allied to the mainstream of the work of the Family Court, and claims much more closely allied with traditional Chancery jurisdiction in relation to disputes about wills and probate.

11.5. These provisional recommendations provoked no significant response during Stage 2, either by way of approval or disapproval. I am content to assume that there was nothing inherently wrong in my provisional recommendations. The only theoretically contentious aspect is whether jurisdiction in relation to TOLATA and Inheritance Act claims should be assigned exclusively either to the family or civil courts. For the reasons already given, which mirror those which underlie the similar proposal in relation to the Property Tribunal (see below), I consider that the preservation of shared jurisdiction, in a way which ensures that the whole of any particular dispute can be fully dealt with in one set of proceedings in one court or the other, is preferable to attempts to carve out exclusive jurisdiction in relation to a subject which, by its nature, straddles the two.

Recommendations

12.15 58. The Family Court should be given a shared jurisdiction (with the Chancery Division and the County Court) for dealing with Inheritance Act and TOLATA disputes: (11.4–5).’

In his 17th View from the President’s Chambers: Divorce and money: where are we and where are we going?18 Sir James Munby P said as follows:

‘I leave to last a particular problem which surely demands a solution.

There is, as most family practitioners are all too aware, an obstacle to the bringing of 1975 Act claims or TOLATA claims in the Family Court. Section 25 of the 1975 Act and section 23 of TOLATA confine the two jurisdictions to the High Court (which of course includes the Family Division) and the County Court (which is now, of course, an entity quite distinct from the new Family Court). These claims do not, usually, require to be dealt with in the Family Division; the Family Court is their natural home. Practitioners are driven to the stratagem of issuing in the County Court and then inviting the District or Circuit Judge to sit for this purpose in the County Court whilst at the same time sitting in the Family Court to deal with any related family money claims, e.g. for ancillary relief. This nonsense is exacerbated in places – the Central Family Court being the most prominent example – where the County Court and the Family Court and their associated court offices are in different buildings. I cannot believe that this was intended; my assumption is that the point was overlooked by the draftsman of Schedule 11 to the Crime and Courts Act 2013.

The remedy could not be simpler. Section 25(1) of the 1975 Act requires that the definition of “the court” be amended by adding after the words “the High Court,” the words “or the family court,”. Section 23(3) of TOLATA likewise requires that the definition of “the court” be amended by adding after the words “the High Court, or (b)” the words “or the family court, or (c)”. This simple solution was identified and recommended by Sir Michael Briggs in his report on civil justice reform. It was rejected, without any adequate explanation by Government for reasons which are unfathomable. Is it really too late for Government to reconsider? Or does the inconvenience of litigants and the administrative burden on HMCTS count for nothing?’

The current President, Sir Andrew McFarlane, in his Message from the President of the Family Division: the Financial Remedies Courts19 said as follows:

‘I am hopeful that in due course legislation will be passed which will allow the FRCs to hear applications under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and the Inheritance (Provision for Family and Dependants) Act 1975.’

Most recently in Kaur v Singh (Deceased) & Ors [2023] EWHC 304 (Fam), Peel J stated:

‘[7] Within a family law context, it is only the Family Division which may hear an Inheritance Act claim. The Family Court does not have equivalent jurisdiction. That is a function of the CPR provisions to which I have referred, as confirmed by the President’s Guidance of 24 May 2021 “Jurisdiction of the Family Court: Allocation of Cases Within the Family Court to High Court Judge level and transfer of cases from the Family Court to the High Court”. The consequence is that such cases, when heard in the Family Division, must be before a judge of High Court level. That is the case whatever the value of the estate. Thus, in Paul v Paul [2022] Fam 1638, Moor J heard an Inheritance Act claim brought by a widowed spouse where the Grant of Probate put the net value of the estate at £429,963, although on the judge’s findings the actual monies available, on one view, were as little as £98,688 before legal costs. By contrast, a financial remedies dispute generally requires assets of not less than £15m to justify allocation to High Court level within the Family Court (see paragraph 3 of the 2016 Statement on the Efficient Conduct of Financial Remedy Hearings allocated to a High Court Judge whether sitting at the Royal Courts of Justice or elsewhere).

[8] It is anomalous that all Inheritance Act claims proceeding in the Family Division must be heard by a judge of High Court level, no matter how modest the assets, whereas a financial remedies claim will ordinarily only be heard by a High Court Judge if the £15m threshold is met. Historically, District Judges of the Principal Registry of the Family Division (the long standing forerunner of the Central Family Court) held such jurisdiction; thus, in Ilott v Mitson [2017] UKSC 17, the first instance decision was made by District Judge Million in the Principal Registry. Arguably, Inheritance Act claims should be capable of being issued in the Family Court, not the Family Division, such that they can be allocated to the appropriate judicial level. A simple means of achieving this would be an amendment to s25(1) of the Inheritance Act 1975 so that the definition therein of “the court” should have added to it the words “or the family court” after “High Court”, coupled with an amendment to CPR 57.15(1) to add “the family court” at a new sub paragraph (c). That, however, is a matter for lawmakers.’

Procedural issues following joinder

If there has been joinder of a third party then, subject to important considerations as to costs and proportionality mentioned below, a process akin to a civil action which is commenced by pleadings (conventionally called points of claim in a family case) will follow in accordance with the guidance first given in TL v ML & Ors (Ancillary Relief: Claim Against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263 by Nicholas Mostyn QC (sitting as a Deputy High Court Judge) at [36]. Whilst this process is akin to procedure under the CPR, the process remains one governed by the FPR (save for those instances where the CPR are expressly grafted onto the FPR).20

The determination of an intervener claim is generally started by points of claim from the person who asserts that the beneficial interest in a property is different to the legal title.21

Family lawyers sometimes appear to misunderstand the nature of a pleading. It is not a witness statement, and it is not a skeleton argument. It should assert in neutral language only those facts and bald legal principles which are necessary to set out the legal basis of the claim. It should not include evidence. It should not have exhibits. Case-law should not be cited and there should not be extensive narrative on general background information unless key to the determination of the dispute. Points of claim should identify the documents relied upon but not set out extracts from documents unless they are short and directly relevant. Points of claim is not a place to provide commentary upon the other party’s claim.

The points of defence should reply in like fashion, accepting, denying or, as the case may be, not admitting and requiring to be proved the facts and legal principles asserted in the points of claim.

It is sometimes appropriate to allow for a reply.

Once the pleadings have ‘closed’ then all parties can see what the others are asserting as a matter of fact and law. In light of the pleaded dispute a case management decision will have to then be made as to what disclosure (i.e. stating what documents exist) should be provided for.

It is common in these circumstances to borrow the idea of ‘standard disclosure’ from civil proceedings. This will require the parties in the first instance to state what documents they have on a list (Form N265 may be a helpful template that the parties can be ordered to comply with in these circumstances).

Importantly, part of the standard disclosure process is a confirmation by way of statement of truth that documents tending to support and undermine all parties’ cases have been searched for, whether in a party’s possession or control (e.g. with an accountant or financial adviser).

If standard disclosure is given by list then there follows a process known as ‘inspection’ when the documents called for on the list are provided.

It is common in family proceedings for disclosure and inspection to be merged with the list, acting as something of an informal index to documents which are being shared and the documents being provided at the same time.

It is not a given that standard disclosure by list must be the procedure in an intervenor case. It may be proportionate to make another order, for example by the service of questionnaires and requests for documents. The principle of standard disclosure may be applied in a more informal sense without the requirement of a list but retaining the requirement that each party signs a statement of truth that all relevant documents have been disclosed.

Family lawyers sometimes misunderstand the relationship between pleadings and disclosure and seek an order that they be provided at the same time. It is suggested that it is hard to know what documents to search for until you have seen how each party factually and legally pleads their case.

Likewise, orders are sometimes sought (and made) in the Family Court which require pleadings, and statements of evidence ‘attaching all documents in support’ to happen at the same time. It is suggested that this is not usually an appropriate order as witness statements can really only be prepared once the disclosure (which is turn depends on the pleaded cases) has been shared and analysed. Attaching documents in support will also fail to capture the requirement under ‘standard disclosure’ for parties to disclose documents adverse to their case. The ‘all cards on the table’ should be the approach.

Once pleadings and disclosure have been undertaken the parties are then in a position to file their witness statements bearing in mind the requirements of the President’s Memorandum: Witness Statements dated 10 November 2021. The provisions of FPR 2010, PD 22A, para 3.3, PD 27A para 5.2, paragraph 22 of the Efficiency Statement of 11 January 2022, and any case-specific case management directions also need to be adhered to.

The foregoing processes and the hearing of an intervenor dispute can be ruinously expensive for families already suffering relationship breakdown. The so-called ‘clean sheet’ costs rules apply (FPR 2010, r 28.2) and so costs are at large.22 The above sequential procedure for pleadings, disclosure and witness statements represents something of a gold standard and therefore in accordance with the overriding objective the position ‘on the ground’ is sometimes rightly less prescriptive (a view that Munby J (as he then was) expressed in A v A (St George Trustees Ltd, Interveners) [2007] EWHC 99 (Fam), [2007] 2 FLR 467 at [23]23 and which Mostyn J acknowledged in Fisher Meredith v JH and PH (Financial Remedy: Appeal: Wasted Costs) [2012] EWHC 408 (Fam), [2012] 2 FLR 536 at [41] stating, ‘It is fair to say that while this discipline is, generally speaking, the right way of proceeding, it is by no means a mandatory prescription’). For example, provision for pleadings and then disclosure without the further cost of statements being drafted may provide ‘good enough’ information for the parties to consider a court-based or private FDR or indeed a civil/hybrid style mediation (lawyers present) where matters can hopefully be resolved without the necessity for a subsequent formal adjudication. Subject to the nature of the dispute, it may in some instances be appropriate to move immediately to some form of dispute resolution with only pleadings.

Finally, if a case is being heard concurrently in the county court and the Family Court, practitioners and judges should ensure that orders are made in the appropriate court. For example, if ‘pure’ TLATA jurisdiction is being exercised by way of an order for sale, the consequent order should be titled ‘In the [Name] County Court’ and any such order made by a Judge sitting in the PRFD must be titled ‘In the High Court of Justice …’.