Family Procedure Rules 2010: How powerful is the court?

Court powers in managing a caseAll this week I am examining the Family Procedure Rules 2010, drawing out what I believe to be the most important changes for practitioners and clients. Today I’m looking at case management, in particular the way in which the rules provide a fascinating insight into how the court ticks, and the vast range of orders it can make in a family law case. All of this is useful to know before you become embroiled in the court process and can be used to help move your case forwards. The court’s all important duty to manage family law cases is expressly enshrined in Rule 1.4. The court’s duty arises in order to further the ‘overriding objective’, which as we discussed yesterday enables the court to deal with a case justly, having regard to any welfare issues involved. It may seem self-evident that the court must manage a case. But some may have experienced going to court, appearing before a judge who may be inexperienced or even downright unpleasant, and coming away with little idea as to what is happening. Their case seems to have made little progress and they may be despairing of ever seeing a resolution. All the while their costs are increasing. The outcome always largely depends on the skill of the particular judge involved and the time available to the court at that hearing and for future hearings. In that respect there will always be some handicaps, but it doesn’t harm to have some background information that may help you to ensure your case is proactively handled. What does active case management mean? Rule 1.4.2 of the Family Procedure Rules states that:

Active case management includes—

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b) identifying at an early stage—

(i) the issues; and

(ii) who should be a party to the proceedings;

(c) deciding promptly—

(i) which issues need full investigation and hearing and which do not; and

(ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

(e) encouraging the parties to use an alternative dispute resolution procedure if the court

considers that appropriate and facilitating the use of such procedure;

(f) helping the parties to settle the whole or part of the case;

(g) fixing timetables or otherwise controlling the progress of the case;

(h) considering whether the likely benefits of taking a particular step justify the cost of

taking it;

(i) dealing with as many aspects of the case as it can on the same occasion;

(j) dealing with the case without the parties needing to attend at court;

(k) making use of technology; and

(l) giving directions to ensure that the case proceeds quickly and efficiently.

Given that all these duties are incumbent on the court, fast forward to Rule 4 (P35) and “General Case Management Powers.” This tells you what powers the court actually has, and you will see they are wide and far reaching. At 4.1.3, (P36) a list of powers is provided:

(a) extend or shorten the time for compliance with any rule, practice direction or court order

(even if an application for extension is made after the time for compliance has expired);

(b) make such order for disclosure and inspection, including specific disclosure of

documents, as it thinks fit;

(c) adjourn or bring forward a hearing;

(d) require a party or a party’s legal representative to attend the court;

(e) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(f) direct that part of any proceedings be dealt with as separate proceedings;

(g) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

(h) consolidate proceedings;

(i) hear two or more applications on the same occasion;

(j) direct a separate hearing of any issue;

(k) decide the order in which issues are to be heard;

(l) exclude an issue from consideration;

(m) dismiss or give a decision on an application after a decision on a preliminary issue;

(n) direct any party to file and serve an estimate of costs; and

(o) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

Everything you could reasonably want the court to do in proactively managing your case is on that list. And, even if there isn’t an express provision, the final entry on the list is the one to go for. But it is well worth taking all these factors on board, particularly if you believe your case has hit the buffers. What should you do if your case grinds to a halt? Let’s take a common example. In a typical finance case all may appear to be going reasonably well up to the First Appointment before the court. Directions for what is to happen next are also agreed at this hearing. The parties usually ask for more information from each other and will argue over the value of a business, property or pensions. So questionnaires then need to be answered, valuations are required and a timetable is needed to make further progress. The parties need to agree the identity of the valuer, a draft letter of instruction to them and so forth. Then things start to go wrong. There are arguments about which valuer is to be appointed. There are delays in replying to the agreed questionnaires. Then when the valuation arrives, one or both parties aren’t happy with it and want more information from the valuer and perhaps may even want to instruct another. Time passes, costs increase and tempers fray. Sometimes the parties try and agree between themselves that they will extend the timetable. Under Rule 4.5(3) (P38) however, time may not be extended by the parties. Once ordered by the court, the timetable must not be allowed to slip. But what do you do if it has, or is about to? One thing is for sure, you don’t waste time on useless letters. Make a fast application to the court. Tell the court what the problem is and ask for a swift resolution of it. Of course this isn’t new, and it certainly isn’t rocket science, but in most cases it works. Judges are more than capable of deciding which valuer should be appointed or how much more information is needed (Note, the courts can act at the request of either party or on its own initiative under Rule 4.3 at (P36). Despite this you find that you are still experiencing problems. How can the court obtain cooperation? Obtaining cooperation Apart from striking out the case or an application, the court has the power under Rule 4.5 (P38) to impose sanctions. Most commonly these are Costs Orders. Although the general rule in financial cases is “no order” (Rule 28.3.5 (P217)), I have raised concerns in the past as to the overall unfairness of a “no costs order” on the poorer party, who may have been forced to litigate. The lack of a costs order means the richer party can use their wealth to financially “outgun” the poorer party and force them to settle, or litigate at great and irrecoverable cost. I have found that in making these orders, courts tend to compensate for this by making larger awards – but it is not the same as a costs order. Despite the general rule, and given that at Rule 28.1 (P25) it states “The court may at any time make such order as to costs as it thinks just”, that provision coupled with the overriding objective could well mean that more costs orders will now be made. So, in cases where either party is failing to cooperate by adhering to the orders of the court, pursuing Alternative Dispute Resolution (ADR), making offers to settle or allowing the timetable to slip, the courts have the power to make costs orders – particularly in financial cases. Despite the general rule, I believe they will toughen up and do just that. Applying for a costs sanction If you wish to apply for a costs sanction, it states at Rule 28.3.6 (P217) that:

The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them).

Factors to be taken into account at Rule 28.3.7 (P217) include:

(a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;

(b) any open offer to settle made by a party;

(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;

(e) any other aspect of a party’s conduct in relation to proceedings which the court considers relevant; and

(f) the financial effect on the parties of any costs order.

These are very important, well worth noting and should be used on the appropriate occasion. Other powers of the court Other powers of the court are far reaching. Rule 20 (P190) deals with the powers of the court in relation to “interim remedies”, which include freezing orders and Anton Pillar orders – recommended by the court in the Imerman case. As to costs involved, the court can now make a security for costs order at the request of a respondent to such an application. It will potentially be yet another pressure on the applicant, who since the Imerman judgement may not resort to any form of “self-help.” One of the issues continually thrown up since the Imerman judgement is the level of pressure applied by one party to the other when they suspect that person to be guilty of self-help. It seems to be on the increase as a particularly nasty weapon used to apply pressure on the weaker party to settle, or face the consequences of criticism in a court and potential costs orders or worse. And finally, what if you don’t like what the court has done? What if you consider the outcome too tough or wrong? Appeals now need permission at all levels. So first you have to tell the judge you intend to appeal and request permission. Don’t be too deflated if the answer is no. The answer is rarely anything else. You then need to ask permission from the judge at the next level…and so on. Coming up A Financial Order is also a Financial Remedy…

1 comment

ObiterJ - April 1, 2011 at 12:12pm

“But some may have experienced going to court, appearing before a judge who may be inexperienced or even downright unpleasant, and coming away with little idea as to what is happening. ” …. and they are just the lawyers !!

I shudder to think how unrepresented people will navigate themselves through this procedural minefield.

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