Please note this content was originally published in the Family Law Journal June 2021 edition, best practice section.
"Lights will guide you home. And I will try. To fix you."
I don’t know whether the author of the Good Practice Protocol, used in the financial remedies courts, listened to this hopeful, encouraging song by Coldplay. ‘Fix You’ was a double platinum single, with 1.2m sales in 2005.
And just as the song fixed you, so the good practice guide fixes how lawyers and litigants in person should fix their preparation as they navigate their way through the financial remedies courts.
Do you remember the good old days before Covid, when this guide was published in November 2019?
The urgent firefighting of Covid then resulted in multiple practice directions, protocols and messages from government and the courts. Every one of them sincerely tried to make things better for a really hard-pressed system. Many of them conflicted with each other and if too many cooks spoil the broth, you can imagine what too many legal advisers might do.
So it seems apposite to revisit this protocol, and to remind ourselves how we should think through and package our clients’ financial cases.
As the writer will try to explain, some of these suggestions now seem dated and may need to be freshened up in the light of the enforced advance to remote justice that we’ve experienced this last year.
The writer’s overriding advice is this. The protocol is a beautifully wrapped present, a gift. So accept it for what it is, embrace it, use it, follow it, because that is how you’re going to best benefit your client. And get on the right side of the judge.
1. Brevity and proportionality
This article is written just a few days after the death of His Royal Highness Prince Phillip, the Duke of Edinburgh, and pays respectful tribute to his memory. He was famously ‘intolerant of faff’ – see article by Alastair Bruce of Sky News.
One of the overriding messages of the protocol is succinctness and brevity.
- questionnaires should be a maximum of four pages
- position statements and schedules should not exceed
- five pages at a First Appointment
- ten pages at an FDR
- fifteen pages at a final hearing
One of the best things about having a presence on Twitter is that you have to confine your messages to 280 characters. It’s a superb discipline in succinctness. Go for it. Oh, and by the way, the ideal length of a Tweet is even shorter, at around 71–100 characters. That’s about the length of the previous sentence #Succinct.
The writer was astonished recently to receive an order allowing his client to file a supporting statement not exceeding two pages. What was even more alarming was to draft it and find that it was easy to do so, to encapsulate the really important parts of a case within a small frame.
Judges are really, really busy people. Respect that.
2. Get the knowledge
The protocol explains that specific guidance will be applied, promoted and encouraged.
- Family Justice Council’s FDR: Best Practice Guidance 2012
- FJC’s Guidance on Financial needs on Divorce 2018
- The report of the Pensions Advisory Group 2019.
3. Getting your case in front of the right judge
A case may be referred to a High Court judge (not ‘transferred to the High Court’) when:
- the overall net assets exceed £15m; and/or
- the overall net annual income exceeds £1m.
You are encouraged to file allocation questionnaires with your Forms A.
The pro forma questionnaire is the third schedule to the protocol.
Put all your points across as to why your case may be a ‘complex’ one.
For example including whether it involves ‘a serious, carefully considered and potentially influential argument’ of:
- non-matrimonial property
Don’t you love this encouragement to carefully consider your case?! Embrace it.
4. Avoiding First Appointments
If there are any silver linings brought about by the time of Covid, one of them is that one can confidently say to a client that she or he won’t necessarily go to court even if they issue an application.
It’s the writer’s experience that invariably it’s possible to bypass the First Appointment by filing a consent order dealing with directions.
This is an example of why I respectfully believe that the protocol should be freshened up post-Covid, because it assumes that most cases will have actual hearings and that only a minority of cases will be able to bypass actual hearings.
The conditions enabling the so-called accelerated first appointment procedure are actually quite rigorous, and I suspect honoured more in the breach than in compliance. But actually that’s the whole point of this article – to remind busy practitioners what is actually required. It’s all set out in the fourth schedule to the protocol.
You are told that 14 days before the First Appointment you are to file:
- agreed directions order in the specified form set out in the protocol
- the bodies of Forms E (with no attachments)
- statements of issues
And you are told to expect a response from the court within 7 days of filing this.
5. Private FDRs
Again, surely our experience is that Covid has accelerated the use of out of court settlement procedures, including private FDRs.
The writer’s experience is that 95% of cases that get to this stage settle either at the private FDR, or within 14 days of it.
The protocol teaches that one should:
- Fix a 5 minute mention a few weeks after the private FDR, when one can file a consent order and accompanying documentation.
- In the case of an unsuccessful private FDR, file at court a written explanation showing that the private FDR was a thorough one. You cannot mention what without prejudice offers were made, but that you should explain that offers were made on each side and an indication given.
- A case management hearing should be held within 46 weeks of the unsuccessful private FDR.
The writer respectfully approves of the judiciary stepping in to help regulate how private FDRs are run. There is a danger that they may become the new Wild West, where anything goes. Who is watching the work of the private FDR judges?
6. Single asset schedule
Surely, surely one of the most important documents looked at in a financial case is going to be the schedule of assets. So you are told to file a single asset schedule which has been agreed.
Thank goodness for common sense.
7. Emails and bad practice
You should avoid sending emails to any other practitioner (presumably including your own counsel!) after 6 pm and before 8:30 am. And you should not send emails to any other practitioner over weekends.
A message repeated by the President of the Family Division in his Road Ahead document of 8 January 2021.
The writer has enjoyed reminding other practitioners of this advice, especially those practitioners who write to litigants in person who may then seek his advice at law clinics.
On that note, I think we should all thank the authors of the protocol for giving us all a rather less stressful and more measured work life balance, which we should all try to follow. As Coldplay point out, ‘If you never try, you’ll never know’.
If you require further information about anything covered in this briefing, please contact Simon Bruce, 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.
© Farrer & Co LLP, June 2021