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The Final Report from the Financial Remedies Working Group

by | Jan 27, 2015 | Uncategorized | 0 comments

The Final Report from the Financial Remedies Working Group

The Financial Remedies Working Group (“the Group”) was introduced in June 2014 to explore ways of improving the accessibility of the family justice system for litigants in person, and to identify ways of further improving good practice in financial remedy cases. The objective of the group is to produce something similar to the Child Arrangements Programme for Financial Remedy cases which is being referred to as the new Money Arrangements Programme (MAP). The group is made up of judges, law practitioners and Court officials. The group have produced two reports; an interim report in July and a final report in December 2014.

In a nutshell the final report concludes that although the current procedure for applications for Financial Remedies works well, there are some improvements that should be made to the Family Procedure Rules (FPR). The recommendations emphasise the importance of non-court dispute resolution including mediation and arbitration. The key feature of the report is the unified approach to all financial remedy applications and the need to take into account an increase of litigants in person.

The final report can be divided into 4 parts:-

  1. Procedure
  2. Litigants in Person
  3. Standard Orders in Financial Remedy Proceedings
  4. Arbitration in Family Proceedings

Part 1 Procedure

The group recommended that:-

Unified Procedure

  • There should be a unified procedure for all financial remedy applications;

  • There is no need for separate powers under Part I of the Domestic Proceedings and Magistrates Court 1978 in light of the single family court;

  • The recent inclusion of variation and Schedule 1 applications in the FPR short cut Chapter V previously limited to Magistrates Court applications should be reversed (except on variation applications in limited circumstances by providing a written statement on application);

  • There should be one Financial Statement (Form E) and one or at the most two versions of the application for a financial order (Form A); 

Deemed Applications 

  • There should no longer be a requirement to submit a Form A for ‘dismissal purposes only’ for the approval of a Consent Order;

  • There should be a reminder that the court is open to make an order for any remedy it deems appropriate including where there is no formal application.

Enhancement of FDRs

  • The FDR hearing should be compulsory save in for truly exceptional circumstances;

  • The parties should be encouraged for the FDR to take place on the first occasion that the parties attend court and there should be clear powers for the judge to impose an FDR at the first appointment against the parties’ wishes.

Accelerated First Appointment Procedure

  • The pilot scheme currently in the Central Family Court only should be introduced nationwide in limited cases where further disclosure/evidence is required or valuations needed which are uncontroversial.

Applications for re-opening first instances orders

  • There needs to be clarification on the re-opening of first instance orders with specific recommendations that there should be a new rule providing for the court’s power to set aside a final order in specified circumstances.

Applications for financial relief after an overseas divorce

  • There should be an amendment to the title of rule 8.25(1) to match the wording of the rule and also to provide that applications should normally be made without notice;

  • Consideration should be given for the level of judge at the permission stage by a district judge and also the substantive stage of such applications;

Efficient Conduct of Final Hearings

  • The Statement on the efficient conduct of financial remedy final hearings allocated to a High Court judge dated 5 June 2014 should be adopted by all final hearings listed for 3 days or more;

  • A reminder that rule 22.6(2) does not prevent the individual judge to permit some evidence in chief beyond the parties’ section 25 statement if the judge considers it appropriate;

  • Practitioners and litigants must strictly comply with Practice Direction 27A, in particular the size of the trial bundle should be limited to 350 pages;

  • Expert evidence should invariably be for a Single Joint Expert in the first instance noting the comments in J v J [2014] 

Legal Costs in Financial Remedy Applications

  • Rule 28.3 FPR enables the Court to make costs orders for litigation misconduct and the group recommends that this rule is applied more generally;

  • Further consideration should be given to the issue of legal costs including the possibility of fixed fees and judicial cost capping.

De-linking Financial Remedy application from the divorce/dissolution suit

  • In principle financial order applications should be de-linked from divorce/dissolution proceedings including that the application/petition for divorce etc should no longer include an application for financial remedy;

Choice of Court

  • Parties should be permitted to take advantage of the specialist Financial Remedies unit in London and that the Central Family Court should be its own point of entry of financial remedy applications; 

Part 2 Litigants in Person

  • Procedures and documentation should take into account the fact that there are an increased number of litigants in person;

  • A short guide for Litigants in person should be sent following the issuing of the Form A;

  • The group welcome the proposal that the government should pay for all MIAMS for a period of 12 months, specifically in financial remedy cases and also the increase of the fee for a solicitor preparing a consent order from £200 to £300 under the Help with Mediation scheme for those eligable for legal aid within mediation ;

  • There needs to be more public awareness/education about non-court dispute resolution;

  • There should be wider sign posting and optimising of useful sites on the internet;

  • There should be guides and documents available in a number of languages;

  • Caution needs to be given when considering whether McKenzie Friends should be paid due to the risks to vulnerable litigants and the impact on the hearing.

Part 3 Standard Form Orders in Financial Remedy Proceedings

  • The group recommended that there be new standard orders for Financial Remedies Directions (short and long versions), Children Act Schedule 1 Final Orders, Enforcement Orders and Committal Orders;

  • Consideration should be given to the IT aspect by making the orders more user friendly.

Part 4 Arbitration in Family Proceedings

  • The High Court, Family Division should be added to Civil Procedure Rule Practice Direction 62;

  • A Family Division N8 Form be devised together with some Guidance on the Arbitration process.

The aim of the group’s recommendations is clearly focused on simplifying and streamlining the process so it is more user friendly for litigants, in particular litigants in person, and more speedy and cost effective for all involved. Now that the final report has been published the Family Procedure Committee can begin to work on the proposals.

So as the family justice system overhaul continues, it seems 2015 is all about financial remedies or should I say the MAP!