Introduction

Once upon a time, not so long ago, ‘ancillary relief’ was something of a legal backwater. Cases were determined solely by reference to ‘reasonable requirements’.1 Procedural rules, to the extent they existed,2 were short and loosely applied. Parties filed narrative affidavits of means and answered requests for further and better particulars. As a junior tenant, I experienced the tail end of this ancien regime: the pilot scheme which introduced Forms E and the FDR coincided with my first day as a pupil (1 October 1996), and was adopted nationwide on 5 June 2000.

In a single generation, all this has changed. The legal principles, post-White and Miller; McFarlane, have developed from the pragmatic (the ‘discipline of the budget’3) to the more theoretical, with the identification of three distribute principles, weighed against the increasing respect for individual autonomy and nuptial agreement. We now have the Financial Remedies Court (FRC) with its own specialist judges. The growth of procedural rules, practice directions, forms and guidance has been little short of exponential.

The theme of this article is the court’s growing expectation that parties and their advisers should be aware of, and comply with, the growing corpus of procedural rules and guidance. This is set out most clearly in a series of judgments from the National Lead Judges of the FRC, Mr Justice Mostyn (2018–2022) and Mr Justice Peel (2022–), i.e.:

‘Court Orders, Practice Directions and Statements of Efficient Conduct are there to be complied with, not ignored … Why is it fair for one party to follow the rules, but the other party to ignore them? Why is it fair for the complying party to be left with the feeling that the non-complying party has been able to adduce more evidence to his/her apparent advantage?’, Peel J, WC v HC (Financial Remedies: Agreements) [2022] EWFC 22 at [1(i)] (22 March 2022)

‘s25 statements must only contain evidence, and “on no account should contain argument or other rhetoric”. In this case, W’s over long statement crossed the line and descended into a number of personal, and prejudicial matters, directed at H which, in my view, were irrelevant to the matters at hand. Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms, and seek to paint an unfavourable picture, will assist their case. It is high time that parties and their lawyers disabuse themselves of this erroneous notion. Judges will deal with relevant evidence, and will not base decisions on alleged moral turpitude or what Coleridge J once famously described disapprovingly … as a “rummage through the attic”’, Peel J, WC v HC (Financial Remedies: Agreements) [2022] EWFC 22 at [1(ii)] (22 March 2022)

‘This utter disregard for the relevant guidance, procedure, and indeed orders is totally unacceptable. I struggle to understand the mentality of litigants and their advisers who still seem to think that guidance, procedure, and orders can be blithely ignored. In Re W (A Child) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, paras 50–51, Sir James Munby P, having referred to “a deeply rooted culture in the family courts which, however long established, will no longer be tolerated”, continued:

“I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders.”

That was nine years ago. But nothing seems to change’, Mostyn J, Xanthopoulos v Rakshina [2022] EWFC 30 at [3] (12 April 2022)

‘I have said before on countless occasions, in court and publicly, that breaches of the two Efficiency Statements (one for High Court allocated cases, and one for cases allocated below High Court Level) are wholly unacceptable … I make no apology for speaking out in strong terms on this subject once again. Case management is a vital part of the financial remedies process, and legal representatives have a duty to assist the court in managing the cases efficiently and fairly. If counsel and solicitors are unfamiliar with these basic, essential requirements contained in the two Efficiency Statements (as seems to have been the case here), they should swiftly put that right.’, Peel J, GA v EL [2023] EWFC 187 (18 October 2023)

I do not mean to suggest that family lawyers should magically transform into civil litigators and seek relief from sanctions every time a deadline is missed. Similarly, in many cases, individual judges will, quite properly, continue to roll up their sleeves and hear the case, rather than itemise the procedural breaches and paragraphs of evidence that play to the gallery. But the direction of travel (the ‘winds of change’) is clear, in terms of an increasingly rule-based approach to financial remedy (FR) claims, which to some extent, reflects the tightening up of civil procedure instituted by the Jackson Reforms.

This article is not intended as a counsel of perfection but rather an identification of the detailed provisions that exist which could impact upon the court’s approach to case management, in terms of how the court might look at a draft questionnaire, witness statement or deal with questions of expert evidence and conduct.

This article assumes a working knowledge of FR procedure and does not deal with every single step such as filing Forms E, etc. Its purpose is to cover the lesser- known rules and authorities, structured around the stages of a typical FR claim.4 The key provisions are as follows:

• FPR Part 9 and FPR 9A
• FPR PD 27A aka ‘the Bundles Practice Direction’
• ‘Primary Principles’ dated 11 January 2022
• ‘The Efficiency Statement’ dated 11 January 20225

Some of the points in this article are expanded in my blog (‘Familybrief’6).

Preparation before the first appointment

(1) Steps that should be taken ‘14 days before First Appointment’7

(a) Joint valuation of family home

Parties shall file a jointly obtained market appraisal of the family home. If a joint appraisal isn’t possible, each party should file a market appraisal ‘and must be expected to explain the reason for the impossibility to the court’: Efficiency Statement, § 10a.

(b) Property particulars and mortgage capacity

Each party should ‘use their best endeavours’ to file (i) ‘no more than 3 sets of property particulars’ setting out housing need for themselves and the other party, and (ii) indicative material as to borrowing capacity: Efficiency Statement, § 10b.

(c) Exchange of concise statements of issue, chronology, Form C, service of mortgagees and draft questionnaires (as to which, see below).

(2) Proposed instruction of experts

‘Wherever possible’ this should be on a single joint expert (SJE) basis: FPR PD 25D, para 2.1. The application should generally be made ‘no later than the first appointment’: FPR 25.6(d):

(3) Accelerated Procedure

Where directions can be agreed, the costs of a First Appointment can be avoided by the parties using the ‘Accelerated Procedure’, which involves agreed directions (etc) being sent to the court for its approval, so that the hearing can be vacated: see ‘Primary Principles’, Sch 4. Please bear in mind that most judges will not approve a draft directions order which provides for ‘replies to questionnaire saving just exception’ (see below).

(4) Non-court dispute resolution (NCDR)

Since April 2024 the court has had the power to stay an FR claim so that NCDR can take place. FPR 3.3(1A) provides that parties will be required to complete a form ‘setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings’, and FPR 3.4(1A) enables the court to adjourn proceedings to encourage NCDR without the parties’ consent. This follows the Court of Appeal’s decision in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, which disapproved Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, and was cited with approval by Knowles J in Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam).

(5) Court bundle

The ‘bundles practice direction’ is currently under review by the Rules Committee. The current position is that an index should be agreed 4 days before the First Appointment, with the bundle lodged 2 days beforehand (FPR PD 27A, paras 6.1, 6.3). The guidance relating to the content of the bundle is well known (FPR PD 27A, paras 4–5). The guidance of 19 April 2022 confirms that the obligation to produce ES1 and ES2 applies as much to litigants in person as to represented parties and where a case involves two litigants in person, the court would still ordinarily expect that an electronic bundle is lodged.

The pagination of an e-bundle must be sequential (i.e. no A1, B1, C1, etc), and follow the PDF numbering: see General Guidance on E-Bundles dated 29 November 2011. Bookmarks should be added. Speaking as a part-time judge, I cannot underline how aggravating it is to conduct a hearing where every single reference has to be given twice ‘page C10 and for your honour it’s PDF page 64’, particularly where evidence is heard.

(6) Complexity

Where a case is said to be complex (warranting allocation to the ‘Complexity List’), a certification to that effect should be made in the Allocation Questionnaire, identifying the applicable issues relied upon. Where a case is said to be ‘exceptionally complex’, requiring allocation to a High Court Judge, an early request to this effect should be made, pursuant to the guidance of 21 May 2024.

The First Appointment

(1) Top tips

Four ‘top tips’ for advocates preparing to attend a First Appointment for the first time: (i) keep your note short (see below); (ii) attach draft directions, based on the Standard Order templates (see ‘Position statements’, below), which unlike private law orders, should not summarise what happened at a hearing or recite the parties’ positions, but should only ‘record, shortly and neutrally, those essential background matters which are not part of the body of the order’: Efficiency Statement, § 32; (iii) email a copy of their note (and an Excel version of the ES2) directly to the court in the eventuality that there has been a problem with the portal; (iv) if you want to appear knowledgeable, describe the hearing as a ‘First Appointment’ and NOT a ‘First Directions Appointment’.8

(2) Listing to FDR

Every FR claim should be listed for FDR unless there are ‘exceptional reasons which make a referral to an FDR appointment inappropriate’ (FPR 9.15(4)). Just as this article was going to press, Peel J handed down judgment in GH v GH [2024] EWHC 2547 (Fam), which underlines the point (at [6]) that ‘It is very hard to envisage a situation where the FDR should be dispensed with’:

‘[5] … It is not only relatively straightforward cases which are susceptible to settlement at FDR. So, too, are complex cases. In my personal experience, even the most intractable case can yield to settlement at the FDR. The purpose of it is to enable the parties to hear (probably for the first time) an independent evaluation of the likely outcome, and the risks (in terms of costs, uncertainty, delay and emotional toll) of continued litigation. The FDR judge is there to tell the parties if their proposals are sound or devoid of merit, or if particular points or arguments are or are not likely to find favour at trial. It is often those hard cases where one or other party appears utterly intransigent that the FDR judge’s indication and observations can be of greatest utility. The FDR judge is well able to deal with factual issues (such as, in this case, W’s earning capacity), not by determining them but by expressing a view as to how they appear on the available evidence and how relevant they are. The FDR judge is also well able to give a clear overview even if (as the judge assumed to be the case here) one or other party’s position is not fully crystallised.’

At the risk of making an obvious point, the FDR judge should not be dealing on the same day with other applications in the case, such as an application for interim maintenance or a costs allowance.

(3) Questionnaires

One of the most welcome pieces of guidance contained in the Efficiency Statement, § 10c is the provision that a draft questionnaire:

‘should not exceed four pages of A4 in length (using not smaller than a 12-point font with 1.5 spacing). The court is likely to approve a questionnaire in excess of 4 pages in a case where complexity (including alleged non-disclosure) justifies a longer set of questions’

My long-held view is that questionnaires normally generate more heat than light. The litmus test for the usefulness of a questionnaire is how often one refers to the replies in preparing cross-examination: generally, the answer is, very rarely.

There is no ‘one size fits all’ guidance for how to prepare a questionnaire. Strictly speaking, although this is almost never done in practice, a questionnaire should be structured around a concise statement of issues and not the paragraphs of a Form E (FPR 9.14(5)(c)) – the significance being that a questionnaire should be focused on the issues, not a general audit of the Form E.

Drafted questions need, first, to pass muster with a court; secondly, to be directed at adducing something useful by way of an explanation or documentation, e.g. relating to gaps in the disclosure (e.g. missing bank statements), or seeking narrative responses in relation to issues such as earning capacity or housing need. When it comes to probing unexplained entries on bank statements, a good rule is ‘less is more’, i.e. zero in on the half dozen or dozen most egregious examples rather than interrogating hundreds (and avoid the general trawl, e.g. ‘please explain all credits and entries over £500’). Generally speaking, it is helpful (as with preparing cross-examination) to project forwards to what would be the main issues at a final hearing, and plan accordingly.

Examples of questions that most judges will strike out are:

• questions about schedules of outgoings, frequently on the basis that the questions amount to a challenge (early cross examination) rather than a genuine attempt to seek clarification;
• repetitive questions from the Form E (‘please confirm you have no other bank accounts’);
• questions that duplicate directions, relating to property particulars, mortgage capacity;
• questions that seek chapter and verse about the operation of a company in circumstances where a forensic accountant is being instructed to prepare a report (i.e. the expert will make his/her own enquiries and will seek relevant documentation).

The court does not normally permit replies ‘saving just exception’ as this would derogate from the judicial task to actively case manage: FPR 9.15(2)(a) and it stores up problems in the future, since the status and enforceability of a question which allows for just exception is moot.

As to schedules of deficiency, bear in mind the difference between a deficient answer, which arguably can be resolved without a specific direction or permission, and a follow-up or supplemental question which, strictly speaking, cannot without the court’s permission: FPR 9.16(1) provides that:

‘(1) Between the first appointment and the FDR appointment, a party is not entitled to the production of any further documents except –

(a) in accordance with directions given under rule 9.15(2) [i.e. answering the questionnaire]; or

(b) with the permission of the court.’

(4) Experts

The test for permission, as everyone knows, is necessity (FPR 25.4(3)) which, as Sir James Munby explained, means ‘necessary’.9 The court must have regard to checklist of factors at FPR 25.5(2) including (e) cost.

The President’s Memorandum on Experts (4 October 2021) sets out four governing criteria: (i) will the proposed expert evidence assist the court; (ii) does the witness have the necessary knowledge and experience; (iii) is the witness impartial; and (iv) is there a reliable body of knowledge to underpin the expert’s evidence, applying Kennedy v Cordia (Services) LLP [2016] UKSC 6.

The maximum length for an expert report is 40 pages (not including exhibits): FPR PD 27A, at para 5.2A.1; subject to court specifically directing otherwise. When it comes to the detail of directing an SJE, a cap may be imposed on the proposed expert’s fees: FPR 25.12(5), Loggie v Loggie [2022] EWFC 2. When it comes to clarification questions, these ‘must’ be for that purpose alone, copied to the other side, and put 10 days after the report is received: FPR 25.10(2).

(4a) Expert pensions actuaries/PODE

Pension reports range from being very useful in some situations, e.g. equalising incomes in retirement, particularly where there are Armed Forces or services pensions which are notoriously difficult to value; to being of limited utility in a case where the parties are some way off retiring and there is going to be a clean break (e.g. where pensions can be divided by reference to notional capital/cash equivalent value).

Bear in mind proportionality. According to the latest PAG2 report, a PODE report is rarely justified where the parties are under 40 or combined pensions are under £100k (see pp 31–32). PAG2 also reflects the line of cases that PODE reports may not be required in bigger money cases, e.g. Moor J in CMX v EJX (French Marriage Contract) [2022] EWFC 136, who commented as follows:

‘[50] … If assets are to be divided equally, they should be divided equally. In general, there is no justification for awarding more to one party because they are younger or have a longer life expectancy. Both parties should share the fruits of the marriage equally. Moreover, in my experience, the only thing that can be said is that life hardly ever goes to plan, whether it be one party living far longer than expected or another remarrying immediately. It follows that I have become very troubled by directions that ask a pensions actuary to calculate a division on the basis of equality of income in retirement. Apart from the fact that such reports tend to be very expensive, the simple fact is that such a direction almost enshrines the Duxbury paradox into practice. It cannot be right, in general, that the younger you are, the greater your award. In any event, it has no place whatsoever in equal division cases.’

The above guidance needs to be read with some caution, i.e. it related to a substantial asset case where the assets were £24m. But if the outcome is going to be based on equal sharing (as opposed to a needs-based outcome) query if there’s any need in a detailed report.

(4b) Forensic accountants/company valuations

A forensic accountant will typically be directed to address the following: the value of company/shareholding, liquidity (i.e. can any surplus funds be withdrawn, and if so when), tax and sustainable level of remuneration. Issues of discount (whether held as quasi partnership) are factual matters for the court. Only rarely will a forensic accountancy report involve a detailed audit (i.e. checking the veracity of the accounts) due to issues of proportionality.

If there is to be an SJE report relating to the business, this might militate the need for the shareholding spouse replying to a lengthy questionnaire seeking disclosure of company documents – since the SJE will be making his/her own enquiries.

In HO v TL [2023] EWFC 215 Peel J set out seven legal principles relating to the court’s treatment of company shareholdings (see [21]–[27]), including (ii) that ‘valuations of private companies can be fragile and uncertain’.

(4c) Employment consultant

Occasionally one party might seek permission to adduce a report from an employment consultant, in relation to the other’s earning capacity, in which case they will need to deal with the strong condemnation of the practice by Moor J in Buehrlen v Buehrlen [2017] EWHC 3643 (Fam):

‘[20] On any application for financial remedies, the judge has to apply s.25 of the Matrimonial Causes Act and has to make an assessment of the earning capacity of both parties, including any increase in such earning capacity as it would be reasonable for the litigant to take steps to acquire in the foreseeable future. That is what judges do every single day of the week. How do they do it? They do it by listening to cross examination; by the provision of advertisements for suitable jobs; by the results of job applications; by considering the CVs of the parties; and the like. They assess all this evidence. It is extremely rare for an expert to be called. Indeed, that was the case before the rules changed to require necessity.

[21] Is it necessary for a judge to hear evidence from an expert? I have already indicated in this judgment that I take the opposite view to Mr Buehrlen. I fear that giving permission to rely on this evidence will make it less likely that this case will settle rather than more likely. Such evidence tends to polarise parties. The evidence is then challenged whether by questions to the expert or an alternative report.’

(5) Litigants in person and filing documents

It is important to bear in mind that litigants in person have no access to the portal (aka the Judicial Case Manager). Instead, litigants in person are expected to send hard copies of their documents to the bulk scanning centre at HMCTS Divorce and Dissolution Service, PO Box 13226, Harlow CM20 9UG, with a covering letter that must give the 16-digit case number and identify the case as ‘Financial Remedy’. Given the problems faced by self-represented parties it may be helpful to include these details on the First Appointment order.

(6) Joinder

Where it is ‘desirable’ to join third parties, directions should be made with a view to dealing with any potential intervenor claim (see FPR 9.26B, TL v ML [2005] EWHC 2860 (Fam) at [34]–[36]).

(7) Vulnerable parties

See below. While the need for participation directions may be more pressing at a final hearing, questions of vulnerability have to be considered at every stage and provision may have to be made for a Ground Rules hearing.

Conduct

In OG v AG [2020] EWFC 52 Mostyn J described how conduct arises in four distinct scenarios: (1) gross and personal misconduct which only arises very exceptionally, (2) add back, (3) litigation misconduct, (4) drawing adverse inferences – where the exercise relates to the process of computation rather than distribution.

More recently, Peel J has provided comprehensive guidance about the procedure of raising conduct in Tsvetkov v Khayrova [2023] EWFC 130, concluding that the court at First Appointment may exercise powers, pursuant to FPR 4.1(l), to exclude that from consideration. Bearing in mind the significance of such a step (and the potential unhappiness of a lay client, being told that they cannot even raise the allegation) it is necessary to cite at length the following passage:

‘[43] A party asserting conduct must, in my judgment, prove: (i) the facts relied upon; (ii) if established, that those facts meet the conduct threshold, which has consistently been set at a high or exceptional level; and (iii) that there is an identifiable (even if not always easily measurable) negative financial impact upon the parties which has been generated by the alleged wrongdoing. A causative link between act/omission and financial loss is required. Sometimes the loss can be precisely quantified, sometimes it may require a broader evaluation. But I doubt very much that the quantification of loss can or should range beyond the financial consequences caused by the pleaded grounds. This is stage one.

[44] If stage one is established, the court will go on to consider how the misconduct, and its financial consequences, should impact upon the outcome of the financial remedies proceedings, undertaking the familiar s25 exercise which requires balancing all the relevant factors. This is stage two.

[45] I have noted an increasing tendency for parties to fill in Box 4.4 (the conduct box) of their Form E by either (i) reserving their position on conduct or (ii) recounting a litany of prejudicial comments which do not remotely approach the requisite threshold. These practices are to be strongly deprecated and should be abandoned. The former leaves an issue hanging in the air. The latter muddies the waters and raises the temperature unjustifiably.

[46] In my view, the following procedure should normally be followed when there are, or may be, conduct issues:

i. Conduct is a specific s25 factor and must always be pleaded as such. It is wholly inappropriate to advance matters at final hearing as being part of the general circumstances of the case which do not meet the high threshold for conduct. That approach is forensically dishonest; it impermissibly uses the back door when the front door is not available: para 29 of?RM v TM [2020] EWFC 41.

ii. A party who seeks to rely upon the other’s iniquitous behaviour must say so at the earliest opportunity, and in so doing should; (a) state with particularised specificity the allegations, (b) state how the allegations meet the threshold criteria for a conduct claim, and (c) identify the financial impact caused by the alleged conduct. The author of the alleged misconduct is entitled to know with precision what case he/she must meet.

iii. Usually, if relied upon, the conduct allegations should be clearly set out at Box 4.4 of a party’s Form E which exists for that very purpose.

iv. The court is duty bound by FPR 2010 1.1 to have regard to the overriding objective

v. In furtherance of the overriding objective, it is required to identify the issues and empowered to determine which issues should be investigated. At FPR 2010 1.4 […]

vi. The court should determine at the First Appointment how to case manage the alleged misconduct. In my judgment, in furtherance of the overriding objective and FPR 2010 1.4, the court is entitled at that stage to make an order preventing the party who pleads conduct from relying upon it, if the court is satisfied that the exceptionality threshold required to bring it within s25(2)(g) would not be met. The court should also take into account whether it is proportionate to permit the allegation to proceed, for a pleaded conduct claim usually has the effect of increasing costs and diminishing the prospects of settlement. Finally, the court should take into account whether the allegation, even if proved, would be material to the outcome.

vii. Of course, in some instances alleged conduct may rear its head after provision of Forms E. One obvious instance is where a party wantonly dissipates monies in the lead up to trial. Should a party seek to advance a conduct claim, this must be brought before the court as soon as possible so that it can be case managed appropriately.

viii. Wherever conduct is relied upon, and the court permits it to be advanced at trial, it should be pleaded. It will be for the court to decide how best to manage the issue. Usually, an exchange of short, focussed narrative statements will suffice (page limits are an indispensable tool in the judicial armoury and should be deployed) but such statements must set out in particularised detail (a) the facts asserted, (b) how such facts meet the conduct threshold, and (c) what consequential financial loss or detriment has occurred.

[47] Finally, and for the avoidance of doubt, this suggested procedural route will not be necessary or appropriate where a party relies only on litigation misconduct. The court will ordinarily be able to deal swiftly with costs at the hearing in time honoured fashion.’

What about coercive control?

Conduct has traditionally involved an extremely high hurdle (i.e. ‘the gasp factor’10), and attempts thus far to bring ‘coercive control’ into account (at a level that does not meet the conventional s 25(2)(g) standard) have thus far been unsuccessful: see Traharne v Limb [2022] EWFC 27, where the allegations were found not proven.

In light of developments in other areas of family law (e.g. FPR PD 12J, the enactment of the Domestic Abuse Act 202111), some have questioned whether the FRC’s restrictive approach to conduct should be reviewed. To date, the high water is a Northern Irish case, Seales v Seales [2023] NIMaster 6, which draws from the Court of Appeal’s decision in Re H-N & Ors [2021] EWCA Civ 448, in which Master Bell opined at [42] that ‘expressions used by lawyers, such as “the gasp factor” … should now be regarded as overstating the position and raising the high threshold above what Parliament actually intended … [there is] a clear obligation on the court in ancillary relief proceedings to recognise cases of coercive control because it would be inequitable to disregard that coercive control’.

However, in N v J [2024] EWFC 184 Peel J exercised case management powers to exclude allegations of conduct, and re-confirmed the ‘high bar’ that a party raising conduct must overcome; at [39]:

‘i) The high bar to conduct claims established in the jurisprudence (cases referred to in this judgment are examples) is undisturbed by the recent focus on domestic abuse in society and the family justice system.

ii) I accept that the statute does not specifically refer to a financial consequence, and it is therefore wise not to rule out completely the theoretical possibility of conduct being taken into account absent such a financial impact. Nevertheless, as the review of authorities above suggests, such cases will be vanishingly rare.

iii) The preponderance of authority clearly militates firmly in favour of financial consequences being a necessary ingredient of a conduct claim. This applies as much to domestic abuse allegations as to other types of personal misconduct.

iv) The alleged conduct (even if it reaches the threshold and has a financial consequence) must be material to the outcome. In the vast majority of cases, a fair outcome is ascertained by reference to the other s25 criteria (including needs and impact on earning capacity) without requiring the court to examine conduct.

v) To inquire into conduct must be proportionate to the case as a whole.

[40] In short, the dicta in both OG v AG (supra) and Tsvetkov v Khayrova (supra) which attempt to distil the learning on both the law and procedure, remain, in my judgment, sound. Courts should continue to case manage conduct allegations robustly at the earliest possible opportunity.’

The FDR

There probably isn’t much to say about preparing for an FDR, save that the Efficiency Statement confirms that ‘it is unacceptable for the court to be presented at the FDR or final hearing with competing asset schedules and chronologies’ (§ 13). Given the layout of the ES2, which is all but impossible to read in hard copy, it is generally a good idea to send the court the Excel spreadsheet as a separate file.

As a matter of good practice, where there is an issue about housing need, which invariably there will be, it is good practice to: (a) ensure that the particulars relied upon are actually consistent with one’s own case; (b) produce a map which identifies where the properties are located; (c) include full particulars which have a floor map – so the court can actually see the size of the properties; and (d) think about objective factors (such as catchment areas for local schools, drive time to work, etc) so the FDR tribunal isn’t faced with each advocate giving what amounts to evidence by proxy (my client says this is a rough area, my client would lose her support network, etc). I have provided further thoughts on this perennial evidential issue in a blog on housing need (‘Housing Need: A Plea for Change’12).

Private FDR

If the parties propose a private FDR, and the court agrees to this course, the order permitting this course should: (a) identify who is being instructed as tribunal; (b) dispense with the in-court FDR; (c) state that the private FDR once fixed may only be adjourned by agreement or pursuant to an order of the court; and (d) provide that the matter shall be listed for a mention shortly after the private FDR, with this hearing to be vacated if a consent order is filed and approved by a judge in advance of the hearing. The order will normally be made at the first appointment. If the identity of the private FDR evaluator has not been agreed by that point the parties must bring to the appointment details, including the fees, of their proposed evaluator. If the identity of the evaluator cannot be agreed at the appointment the court will resolve the issue: Efficiency Statement, § 15. Also see guidance in AS v CS (Private FDR) [2021] EWFC 34, e.g. where one party seeks to back out of a private FDR (not without consent or the court’s permission) – see Mostyn J at [16].

Directions after the FDR

A key difference between a court FDR and a private FDR is that, with the former, the court will be making directions, whereas in the latter the tribunal has no power to deal with directions at all. The FDR judge can have no further involvement in the case, save to make ‘… a further directions order’ (FPR 9.17(2)). There remains some doubt as to the propriety of an FDR judge dealing with contentious directions such as an application to instruct a second expert (i.e. a Daniels v Walker application). See the recent blog of Nicholas Allen KC on the FRJ website (‘Myerson No 1 and FPR 9.17(2): What Can the FDR Judge Actually Do?’13).

(1) Open proposals

Unless a specific direction is made to the contrary, the rules provide for two rounds of open proposals: (1) first, after FDR, normally 21 days (FPR 9.27A); and (2) before the final hearing, 7 and 14 days before the final hearing (FPR 9.28).

(2) Listing to final hearing and PTR

As a general rule of thumb, listing a final hearing for 1 day will place the court under significant pressure unless the oral evidence can be heard in the morning. If the court is still hearing evidence after 2 pm, there will probably be insufficient time for closing submissions, consideration and delivery of judgment.

Where the final hearing is to be a PTR it must be listed, ideally before the trial judge, where the final hearing is listed for 3 days or more (Efficiency Statement, § 17). Where a party is relying on auditing spreadsheets (i.e. showing how a party has spent capital), this must be dealt in advance (i.e. at the PTR) and not on the morning of the final hearing:

‘[1(v)] … I deprecate the practice, which appears to be prevalent, of lawyers producing at the eleventh hour spreadsheet analysis of expenditure during the marriage … If an exercise such as this is to be relied upon, it must be provided well in advance … before the PTR.’ WC v HC (Financial Remedies: Agreements) [2022] EWFC 22 (Peel J)

(3) Trial templates

The disconnect between advocate and judge is never so obvious as when it comes to drafting trial templates. It is hard to overstate quite how hopeless some of these are. I have dealt with a case where the template allocated longer for examination in chief than cross examination, where (after a 2-day hearing) judgment was meant to be prepared and delivered in an hour.

The main point is to be realistic and, to quote one seasoned district judge who sat at the PRFD, to make the judge your friend, i.e. ensure that the court has sufficient time both to read into the case and prepare a judgment.

The Efficiency Statement, § 19 provides that in every case a template ‘must’ be prepared, to: (a) allow a reasonable and realistic time for judicial reading and judgment writing; (b) not normally allow longer than 30 minutes for opening; and (c) not normally allow for any evidence-in-chief. Pursuant to FPR 22.6(2), the parties’ section 25 statements will normally stand as their evidence-in-chief.

A template should not be agreed on the expectation that a case will either have to go part-heard or a reserve judgment will be required: see Augousti v Matharu [2023] EWHC 1900 (Fam) per Mostyn J:

‘[31] Going part-heard is a bane with potentially damaging consequences on a number of fronts. One consequence may well be that another case will be thrown out of the list. Another is that parties, as here, often seem to think that the delay opens the door to the adducing of further evidence. A further downside is that the evidence about facts in issue begins to fade from the judicial memory. And obviously, circumstances can change during the interregnum.

[32] What all this means is that at the pre-trial review there must be the most careful examination of the time estimate, and of the trial template, to ensure that going part-heard at trial is avoided at all costs…’

(4) Section 25 witness statements

Generally, as to the content of a witness statement, see FPR Part 22, WC v HC (Financial Remedies: Agreements) [2022] EWFC 22 at [1(ii)], Efficiency Statement, § 11 and President’s Memorandum on Witness Statements, in particular:

‘1. Too many witness statements are prepared in breach of proper professional standards …

7. A witness statement must not: a. quote at any length from any document; b. seek to argue the case; c. take the court through the documents in the case; d. set out a narrative derived from the documents; e. express the opinions of the witness; or f. use rhetoric …

15. A witness statement must be as concise as possible without omitting anything of significance.

16. As a general standard, a witness statement should not exceed 15 pages in length (excluding exhibits). This page limit is a statement of best practice and does not derogate from the limit of 25 pages in PD 27A para 5.2A.1, which should be regarded as a maximum.’

• Conduct should not be covered in a s 25 statement (even though it appears as one of the factors), particularly when they are to be exchanged simultaneously. Where it is being pursued, separate directions should be made for evidence on conduct (setting out what is relied upon, the basis, and what effect the alleged conduct should have) with the respondent then having the opportunity to respond. Also, per Tsvetkov v Khyarova (see above), permission should be sought.
• It may be helpful to identify in the directions which issues (or sub-sections in s 25) are being relied upon, together with the maximum page count: best practice is 15 pages; the maximum is normally 25 pages (Efficiency Statement, § 22(j)).

(5) Vulnerable parties/ground rules hearing

The court is under a duty to identify any party who is vulnerable and to make, pursuant to FPR 3A and FPR PD 3AA, participation directions, e.g. directing that screens should be in place, that evidence is heard remotely, making provision for regular breaks during the evidence, or in some cases making provision for an intermediary to report on assisting with communication. In the writer’s experience, where an issue arises as to whether, for reasons of vulnerability, a hybrid hearing might take place, it is sometimes preferable for the entire hearing to be remote, rather than the complexities that can arise with one party physically in court while the other is remote.

Effective from 21 July 2022, s 65 Domestic Abuse Act 2021 introduced Part 4B (ss 31Q–31Z) into the Matrimonial and Family Proceedings Act 1984, which prohibits cross-examination by perpetrators and alleged perpetrators of domestic abuse (‘P’). Consequently, where all other options are exhausted (such as P instructing lawyers, or the court appointing a Qualified Legal Representative: as to which, see AXA v BYB [2023] EWFC 251 (B) and the View from the President’s Chambers from July 2023 which sets out the problems with the QLR procedure), provision might have to be made for the perpetrator lodging with the court (but not the other side) draft cross-examination questions. The problems and potential unfairness of such a direction will be self-evident: cross-examination is generally difficult and involves a number of rules in terms of what can and cannot be asked (e.g. anything relating back to the FDR); many experienced advocates would bridle at having to write out longhand cross-examination questions in advance of a final hearing; it will be all the more difficult for a litigant in person who has limited knowledge of the law, who will likely struggle to understand what issues are going to be relevant, or what normally can or cannot be asked.

Where the court makes provision for such a direction requiring draft questions to be lodged, it may also need to consider what other directions to mitigate the potential difficulties, e.g.:

• providing that the paginated bundle and the parties’ open proposals should be filed before P lodges his proposed questions;
• requiring that P provides a page reference for every proposed question, to enable the court to understand what documents are being referred to;
• in an appropriate case, setting out some broad guidance as to which areas P will be expected to deal with in his questions.

(6) Daniels v Walker applications

Where a party disagrees with an SJE’s report, the first port of call will invariably be raising clarification questions. Thereafter, a dissatisfied party may pursue a second expert’s report, although as a general rule of thumb this is an exceptionally difficult application to pursue at the Family Court.

There has, until recently, been a dearth of FR authority on the applicability of Daniels v Walker [2000] EWCA Civ 508. In GA v EL [2023] EWFC 187 Peel J confirmed that the test would be whether additional expert evidence was necessary, having regard to a number of civil authorities:

‘[28] Whether the further expert evidence is “necessary” will be informed by the approach advanced in Daniels v Walker [2000] EWCA Civ 508 and several subsequent cases including Cosgrove & Anor v Pattison [2001] CPLR 177, Peet v Mid-Kent Healthcare NHS Trust [2001] EWCA Civ 1703 and Kay v West Midlands Hinson v Hare Realizations Ltd. From these authorities, I draw the following principles:

(i) The party seeking to adduce expert evidence of their own, notwithstanding the fact that a single joint expert has already reported, must advance reasons which are not fanciful for doing so

(ii) It will then be for the court to decide, in the exercise of its discretion, whether to permit the party to adduce such further evidence.

(iii) When considering whether to permit the application, the following non-exhaustive list of factors adumbrated in Cosgrove & Anor v Pattison (supra) may fall for consideration:

“… although it would be wrong to pretend that this is an exhaustive list, the factors to be taken into account when considering an application to permit a further expert to be called are these. First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly, the reason the new expert is wanted; fourthly, the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application; seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any special features of the case; and finally, and in a sense all embracing, the overall justice to the parties in the context of the litigation”.

(iv) For my own part, I would draw particular attention to the words “the overall justice to the parties in the context of the litigation” which seems to me to encapsulate neatly the court’s task.’

Position statements

Length and content

The point has already been made that, from a judicial point of view, position statements are far too long. Nothing calls into question the judicial will to live quite like the arrival of a 20- or 30-page position statement, densely detailed, reciting a list of complaints without any clear overview of what actually are the issues in a case.

Practitioners often overlook the guidance that they ‘should be concise’ and as best practice should not exceed 6 pages (First Appointment), 8 pages (interim hearing), 12 pages (FDR), 15 (final hearing): Efficiency Statement, § 24(a). The maximum page limit is as per FPR PD 27A, para 5.2A.1.

This guidance also provides that a position statement should ‘define and confine the areas of controversy … not include extensive quotations from documents’ and should include a summary of the parties’ open negotiations: Efficiency Statement, § 24(b–h).

Citation of legal authority

First, state the proposition of law; then identify the parts of the authority that support the proposition, without extensive quotation: Efficiency Statement, § 24. Give the neutral citation where it exits (post-11 January 2001)14 and where possible give the Official Law Report citation (i.e. [2022] Fam 115). There is no need to cite multiple authorities that all make the same point, a practice recently condemned by the Court of Appeal in University of Essex v Allianz Insurance Plc [2023] EWCA Civ 1484 at [1], per Coulson LJ:

‘leading counsel on both sides referred to the authorities in a measured and controlled way and spared the court the incontinent citation of numerous vaguely relevant causation authorities, all too common in appeals of this type. We are very grateful to them’.

What cannot be cited as an authority?

It is important to bear in mind the difference between a judgment that has been published on the National Archives/BAILII, and a judgment that can properly be cited as an authority. While all judges in the Family Court have been encouraged to publish 10% of their judgments online (see Confidence and Confidentiality, § 53), judgments at DDJ, DJ, circuit judge or recorder level cannot generally be cited unless they purport to establish a new principle, or extend the present law (or unless there is no available decision at a higher level). Following the Lord Chief Justice’s Practice Direction on Citation of Authority (9 April 2001), § 6, the following cannot be cited as authority:

• applications attended by one part only;
• permission to appeal;
• decisions of circuit judge and below unless there is no available decision at a higher level.

Costs

The procedural rules about lodging costs estimates are set out at FPR 9.27. The general rule is that there will be no order as to costs in FR proceedings (FPR 28.3(5)).16 The points to note are as follows:

• a different order will be made in cases of litigation misconduct, which includes where a party has failed to negotiate openly and reasonably (see above);
• the court may also make orders adjusting for a gross disparity between the parties’ costs. In YC v ZC [2022] EWFC 137 W’s costs were almost three-times as high as H’s (£463k/£159k) and the court added back £200k:

‘[42(viii)] …The court should be slow to allow the grossly disproportionate spender (and the solicitors representing such a person) to feel that there is no check on legal costs spending. A proportionality assessment taking into account the costs being incurred in the context of what is in reality at stake in the dispute is surely an essential requirement at all stages … In obvious cases, and absent any proper explanation for the differential in spending, the court can deal with any unfairness arising from the differential in legal costs spending by making an adjustment in the court’s asset schedule before distribution, for example by excluding a portion of the over-spender’s unpaid costs and/or adding back a portion of the over-spender’s costs already paid, thus appropriately penalising the over-spender without actually making an inter partes order for costs’

• Increasingly, costs arguments may turn on a refusal to engage in NCDR with the coming amendments to the rules and in light of cases such as Mann v Mann [2014] EWHC 537 (Fam) and the Court of Appeal’s decision not to follow the Halsey rule in Churchill v Merthyr Tydfil [2023] EWCA Civ 1416 whereby parties can now be ordered to attend NCDR.

Costs and open proposals

FPR 28.3(6) provides that costs orders might be made where appropriate, in case (FPR 28.3(7)) of litigation misconduct, having regard to the terms of (‘b’) open proposals. FPR PD 28A, para 4.4 provides that:

‘the court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a “needs” case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court.’

There are a growing number of cases in which the court can take a party’s failure to make a reasonable open proposal into account on costs, e.g. the leading decision of Mostyn J in OG v AG [2020] EWFC 52, who commented at [31]:

‘It is important that I enunciate this principle loud and clear: if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing.’

Wasted costs and indemnity costs

‘“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean”’ (Lewis Carroll, Through the Looking Glass)

Lastly, as a general observation, practitioners should resist the temptation to habitually threaten ‘wasted costs’ and ‘indemnity costs’, without recognising that these terms have specific meanings in law, i.e.:

• a wasted costs order is payable by a legal representative as a result of improper, unreasonable or negligent acts or omissions (Senior Courts Act 1981, s 51(6), (7)) – not the same as a costs order following a hearing that turned out to be a waste of time;
• indemnity costs involve any doubt on an assessment of costs being resolved in favour of the receiving party (as opposed to the general basis, where doubts are resolved in favour of the paying party); in other words, the receiving party does not have to and only made where the conduct is – which is rare in practice. The principles were summarised by Coulson J in Elvanite Full Circle Ltd v AMEC Earth & Environmental [2013] 4 Costs LR 612 at [16]:

(a) ‘Indemnity costs are appropriate only where the conduct of a paying party is unreasonable to a high degree. “Unreasonable” in this context does not mean merely wrong or misguided in hindsight’: see Simon Brown LJ (as he then was) in Kiam v MGN Ltd [2002] 1 WLR 2810.

(b) The court must therefore decide whether there is something in the conduct of the action, or the circumstances of the case in general, which takes it out of the norm in a way which justifies an order for indemnity costs: see Waller LJ in Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879.

(c) The pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, provided that the claim was at least arguable. But the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order: see, for example, Wates Construction Ltd v HGP Greentree Alchurch Evans Ltd [2006] BLR 45.

(d) If a claimant casts its claim disproportionately wide, and requires the defendant to meet such a claim, there was no injustice in denying the claimant the benefit of an assessment on a proportionate basis given that, in such circumstances, the claimant had forfeited its rights to the benefit of the doubt on reasonableness: see Digicel (St Lucia) Ltd v Cable and Wireless PLC [2010] EWHC 888 (Ch).