Improving Efficiency in the Family Courts – Changing the Way We Work

On 11th January 2022, a “Statement on the Efficient Conduct of Financial Remedy Proceedings in the Financial Remedies Court Below High Court Judge Level” was issued by Mr. Justice Mostyn and His Honour Judge Hess with the approval of the President of the Family Division. The purpose is to enhance efficiency in financial remedy cases, ensure that an appropriate share of the court’s resources is allotted to each case and improve access to justice.

The statement includes many new requirements that will alter the way family lawyers deal with these cases, especially in the weeks running up to court hearings. These include the following:

• More collaboration with the other party/their lawyers on agreeing joint documents such as a standard-form case summary and asset and income schedule which must be updated before each court hearing and a neutral chronology (the figures in the asset and income schedule do not have to be agreed - there is space for both parties to insert their own figures and to highlight any disputes);
• Allocating cases to an individual judge at the earliest opportunity (taking into account that the judge at the Financial Dispute Resolution hearing (FDR) cannot deal with later hearings);
• A jointly obtained market appraisal of the family home to be obtained 14 days before the First Appointment hearing or, if a jointly obtained appraisal is impossible, parties to file one each;
• Parties to use their best endeavours to provide example property particulars illustrating housing needs and jointly obtained evidence of their mortgage borrowing capacities 14 days before the First Appointment;
• Limiting the length of questionnaires regarding the other party’s disclosure;
• Early listing of final hearings and fixing the next hearing date before the parties leave court;
• Best practice limits on the length of position statements depending on the type of hearing;
• Using standard template court orders, limiting recitals to orders and ensuring that the order is finalised swiftly after a hearing.

One effect of some of the changes will be to front-load aspects of the case, dealing with issues such as housing needs and mortgage capacity at a much earlier stage than has traditionally occurred. In some cases, this will lead to increased work (and therefore costs) at an earlier stage. However, by ensuring that relevant information and evidence is available earlier, it may well be that more cases can be settled at an earlier stage, saving the parties time and legal fees in the long run.

There is also an emphasis on negotiating openly and reasonably, with costs penalties for those who do not engage, and on out-of-court methods of dispute resolution such as private FDRs and ensuring that parties who have committed to this cannot unilaterally back out.

The statement also specifically addresses wellbeing, making it clear that hearings should take place during standard hours and discouraging sending emails after 18:00 or before 08:30. 

It remains to be seen how easy it will be to put all the changes detailed in the statement into practice in cases where one or both of the parties is unrepresented. The precedent case summary and asset schedule have been drafted in a neutral way with the ability to identify areas of disagreement to try to reduce the scope for dispute. However, litigants in person may not be aware of or understand the requirement to collaborate and agree these shared documents or of what would or would not be relevant and appropriate to include and this may lead to difficulties.

We frequently assist clients in resolving matters without reference to the courts, be that through negotiation between solicitors, mediation, collaborative practice, arbitration or another approach. We are also very experienced in litigation and for those cases that do reach the courts, we hope that the recent changes will increase the prospects of settling cases at an early stage.