Drafting questionnaires in financial remedy cases

Parties to financial remedy proceedings are under a duty to provide full, frank and clear disclosure of their finances. They are required to complete a Form E, but if further information is sought, then the way to obtain it is via a questionnaire. This column considers the requirements and offers some practical tips.

Rule 9.14(5) requires both parties to file with the court and serve on the other party a statement of issues, a chronology and a questionnaire, 14 days before the first appointment. The questionnaire can seek further information or documents.

There is no prescribed format for the questionnaire, but the rules specifically provide that questions asked must be by reference to the statement of issues. It is therefore good practice to prepare the two documents together using the issues listed on the Statement of Issues as headings in the questionnaire.

At the first appointment the court must determine the extent to which any questions must be answered and what documents must be produced. The court's duty is to ensure that questions are relevant and necessary to the resolution of the issues in the case, and that it is proportionate for them to be answered. When con-sidering whether a question is proportionate, the court should take a “broad, even rough and ready attitude to the valuation of assets which are unlikely to make a significant difference to the overall value of the pot” (B v B [2013] EWHC 1232). The “objective is broad fairness, not arithmetical precision” (Christoforou v Christoforou [2019] EWFC 16).

The FPR 2010 define “document” as “anything in which information of any description is recorded” and so will include electronic documents, and even metadata (where the authenticity of a document is challenged).
If the other party's Form E is comprehensive, and no further information is required, there is no need to file a questionnaire. Equally, where the fast track procedure is being used, there will be no automatic direction for questionnaires to be filed.

The subject of questionnaires is also dealt with in the Statement on the Efficient Conduct of Financial Rem-edy Hearings Proceeding in the Financial Remedies Court Below High Court Judge Level dated 11 January 2022 which requires that the 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 therefore only likely to approve a questionnaire in excess of this length in a case where complexity (including alleged non-disclosure) justifies a longer set of questions.

Where questionnaires are agreed, parties are free to agree the directions to be made at the first appoint-ment based on the accelerated paper-based procedure set out in Sch 4 to the FRC Primary Principles. Alt-hough the schedule states that it is anticipated that in the large majority of cases there will be a personally attended first appointment where parties can hear for themselves what arguments are being advanced on their behalf, hear the judge's reaction to them and hear what expenditure on costs has been incurred and is anticipated going forwards, the accelerated procedure is intended to provide a method for avoiding per-sonal attendance where the parties have been able to agree directions in advance, where personal attend-ance is likely to have little purpose and where the benefits of personal attendance are likely to be heavily outweighed by the costs incurred in attending.

This procedure is only to be available where there is an agreed directions order in a specified form (set out in the schedule) and this and the required documents have been filed with the court by email at least 14 days prior to the date fixed for the first appointment hearing and a district judge has approved the draft agreed directions order in advance of the hearing. Once again, the questionnaire must be limited to four pages.

A party is not required to disclose information which is protected by privilege.

Whilst a detailed discussion relating to privilege is not the subject of this column, it is important to note that a question which relates to when solicitors were first contacted or instructed in connection with a case is not of itself considered to be privileged and therefore can legitimately be asked. In R v Crown Court at Manchester, ex p Rogers [1999] 4 All ER 35, Lord Bingham CJ stated:

“It is none the less true that legal professional privilege applies, and applies only, to communi-cations made for the purpose of seeking and receiving legal advice . . .

The record of time on an attendance note, on a time sheet or fee record is not in my judgment in any sense a communication. It records nothing which passes between the solicitor and the client and it has nothing to do with obtaining legal advice. It is the same sort of record as might arise if a call were made on a dentist or a bank manager. A record of an appointment made does involve a communication between the client and the solicitor's office but is not in my judgment, without more, to be regarded as made in connection with legal advice. So to hold would extend the scope of legal privilege far beyond its proper sphere . . ."

The privilege against self-incrimination allows a party to refuse to answer any question or produce any doc-ument if to do so would expose him or her to proceedings for a criminal offence. However, in the Court of Appeal judgment of R v K [2009] EWCA Crim 1640, the court found that the court could not fulfil its duties under s 25 of the Matrimonial Causes Act 1973 unless the parties disclosed all relevant information, even if it incriminated them.

Therefore, it is not open to a party to financial remedy proceedings to claim privilege against self-incrimination in financial remedy proceedings.

Questionnaires are an important and useful tool to obtain further disclosure in financial remedy proceedings. However, the court has a duty to ensure that cases are dealt with in a way which is proportionate to the na-ture, importance and complexity of the issues in question. It also has a responsibility to manage cases and to decide which issues need investigating and which do not. It is therefore important to ensure that questions are clear, concise and focused on the issues that need to be resolved in order to achieve an overall resolution of the case.

If you require further information about anything covered in this briefing, please contact Caroline Holley or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

Please note this content was originally published in the Family Law Journal. September 2022 edition, best practice section.

© Farrer & Co LLP, October 2022