FAMILY/MATRIMONIAL: An Introduction to Manchester and surrounds

Chambers and Partners  

Commentary – Andrew Newbury – Hall Brown Family Law

2022 was a year in which case law developments took a backseat to procedural changes. Although it was confirmed in February 2021 by the President that the Financial Remedies Court would no longer be a pilot project, it was not until a year later that practitioners saw a significant change in practice and procedure.

The two key documents published in January 2022 were the Efficiency Statement and the Primary Principles. The purpose of both documents is to ensure a focused approach to financial remedy proceedings in which the key issues are identified at an early stage. In practice however they have led to a significant amount of work being carried out by practitioners at an early stage in proceedings which has had a knock-on effect on costs (of which more later).

Although the Family Procedure Rules 2010 only provide for the exchange of Forms E and then questionnaires prior to the first appointment, now parties are required to complete forms ES1 and ES2, as well as providing property particulars and borrowing capacity illustrations. Some of this preparatory work was, in fairness, already considered best practice but these steps are now mandatory and the work required in the two to four weeks prior to a first appointment has been intensified.

Undoubtedly a positive aspect of the reforms has been the roll-out of the accelerated first appointment procedure, which had originally only been used in the Central Family Court. In the majority of applications, directions can be agreed in advance, with no hearing being required. For those first appointments which do need to take place, the majority are now remote, with in-person First Appointments being the exception, rather than the rule. Experienced practitioners like this firm can remember when some courts were willing to consider a similar proportionate approach to this hearing as long ago as the early 2000s and it is good to see this being rolled out nationwide.

Post-COVID, the Family Court has not, however, settled into an established pattern of using in-person or remote hearings. The practice varies around the country, with lead judges in each Financial Remedy Court zone being able to issue local guidance as to which hearing should be heard remotely and which should be in person. Certainly, the preference amongst practitioners appears to be for remote first appointments, and in-person final hearings, yet with differing views taken on the efficacy of remote FDRs.

The use of private FDRs, and to a lesser extent arbitration, reflected the most significant shift from using the court process in recent years. Although no formal statistics are kept regarding the success rate of private FDRs, anecdotally it is believed that they achieve a greater level of settlement than court-based FDRs. Aside from issues of convenience and speed of listing, it must be assumed that as both parties buy into the private FDR process by paying for the services of a third party, there must be a greater desire to achieve a settlement. That is aside from the fact that the parties will have the benefit of their own judge, who will have read the papers in full and is engaged in the process for the entire day. It is not a criticism to say that a District Judge will struggle to prepare for and manage what can be six FDR hearings in a day to the same standard as a third party who will have had time cleared in their diary to prepare in advance and can devote a whole day to encouraging and supporting parties in (hopefully) their desire to settle.

Although engaging in the private FDR process does entail having to pay for the services of a third party to act as a judge, the procedure usually ensures that an early hearing can be fixed, thereby leading to the parties reducing their overall legal bill. By contrast, one of the few themes which is being repeated in reported cases are concerns expressed by judges in respect of the significant level of legal fees. Mostyn J commented that “something must be done” about the high level of costs being incurred by the parties to some contested financial remedy proceedings. He has expressed his clear view that either the Law Chancellor or the Family Procedure Rule Committee needs to address this issue.

For some parties to litigation, another compelling reason why they may wish to engage in private FDRs and arbitration, as opposed to court proceedings, is the increased desire to reduce the lack of transparency in financial remedy proceedings. In a judgment given in 2022, Mostyn J concluded that the standard anonymization of judgments is unlawful and that a reporting restriction or anonymization order can only be made in a specific case where an application has been made, and the appropriate order made, following on from applying the balancing exercise.

Finally, the move away from the traditional court process and structure can perhaps most starkly be seen in the use of the portal in the issuing and conducting of all family proceedings. The introduction of no-fault divorce in April 2022 was undoubtedly one of the most long-awaited developments in family law, but it is perhaps surprising that online cloud based procedure has gone without a great deal of comment. Particularly seen in the context of the ongoing use of remote hearings and electronic bundles, 2022 will undoubtedly be remembered as the year in which the family law world went truly digital.