NEW FAMILY PROCEDURE RULES (WHILE WE’VE ALL BEEN IN LOCKDOWN)
While we’ve all been in ‘lockdown’ a whole host of amendments to the Family Procedure Rules have come into force and more will come into force on 6 July 2020.
I’ll deal with the three most consequential.
The full SI is available here http//www.legislation.gov.uk/uksi/2020/135/contents/made
Rule 5.7 – Now in force
Unilateral Communications with the Court
Court staff and Judges have been increasingly bothered by sometimes voluminous emails from Litigants in Person and Solicitors that look rather like they were written to be ‘kept secret’ from the other side. Those days are now, at long last and probably in theory rather than in practice, hopefully over.
The new FPR Rule 5.7 provides that:-
5.7.—(1) Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format) copied to, the other party or parties or their representatives.
(2) Paragraph (1) applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.
(3) A party is not required under paragraph (1) to disclose or copy a communication if there is a compelling reason for not doing so, and provided that any reason is clearly stated in the communication.
(4) A written communication required under paragraph (1) to be copied to the other party or parties, or their representatives, must state on its face that it is being copied to that person or those persons, stating their identity and capacity.
(5) Unless the court directs otherwise, a written communication which does not comply with paragraph (4) will be returned to the sender without being considered by the court, with a brief explanation of why it is being returned.
(6) In addition to returning a communication under paragraph (5), where a party fails to comply with paragraph (1) the court may, subject to hearing the parties, exercise its case management powers under Part 4.
It is worth noting :
- The requirement to copy in one’s opponent to any communication to the court only applies to communications on a matter of substance or procedure and not to the humdrum inconsequential matters that are “purely routine, uncontentious and administrative”.
- The rules do not specifically require the ‘copying in’ to be simultaneous with the communication to the court.
- Any communication to the court must state on its face that it is: (i) being copied to the other side; and (ii) identify to whom; and in what capacity the communication is being copied.
- Failure to comply with the requirement for the communication to contain a declaration that it has been copied to the other party : (i) will result in the court returning the communication to the sender without considering its contents; and (ii) may result in the court exercising its case management powers under FPR Part 4
- The fact that lockdown is meaning more and more direct communications with Judges on their own judicial e-mails and fewer staff in the Court Office to ‘vet’ emails into the Court raises its own thorny questions.
- The rule will impose yet another burden on Family Court Judges and Court staff already burdened with endless emails and perhaps see the return to anything other than a formal application being considered.
Rule 9.27A – from 6 July 2020
Open Offers for Financial Remedy Cases
The days when the parties could keep their Open Proposal ‘up their sleeves’ until shortly before the final hearing (14 days before the final hearing for the applicant and 7 days thereafter for the respondent in accordance with FPR rule 9.28) is being replaced by a requirement that each party state their open position 21 days after the date of the FDR appointment (unless the court directs otherwise).
Meaning that Open Offers to settle will be admissible and relevant to the issue of costs under FPR rule 28.3(7)(b) as justifying a departure from the normal “no order” principle – and that the earlier in the litigation process they are made – then the greater the amount of costs that may be payable under any order which directs that such costs shall be recoverable from the date upon which an open offer is made.
The new FPR Rule 9.27A provides that:-
9.27A.- (1) Where at a FDR appointment the court does not make an appropriate consent order or direct a further FDR appointment, each party must file with the court and serve on each other party an open proposal for settlement—
(a) by such date as the court directs; or
(b) where no direction is given under sub-paragraph (a), within 21 days after the date of the FDR appointment.
(2) Where no FDR appointment takes place, each party must file with the court and serve on each other party an open proposal for settlement—
(a) by such date as the court directs; or
(b) where no direction is given under sub-paragraph (a), not less than 42 days before the date fixed for the final hearing.”
It is worth noting :
- FPR Rule 9.28, (which requires open proposals from the applicant not less than 14 days before the date fixed for the final hearing and 7 days thereafter in the case of the respondent) remains in force. The parties are therefore under a duty to revise and, if necessary, amend their open proposals shortly before the final hearing.
- The FDR Judge will be required to give under FPR Rule 9.17 (9) namely – as well as giving directions for (a) for filing evidence and up to date information and (b) fixing a final hearing date – to give a direction as to “(c) any necessary directions for the filing of open proposals for settlement under rule 9.27A or rule 9.28”.
Rule 9.27 – from 6th July 2020
The parties will be required to file and serve not only a Form H setting out their costs incurred to date (as they do now), but also:-
- an estimate of their future costs to the next stage of the process (i.e. to the FDR at an FDA hearing and to the final hearing at an FDR hearing); and
- in the case of a final hearing, each party must file and serve not less than 14 days before the hearing “full particulars of all costs in respect of the proceedings which the filing party has incurred or expects to incur”.
- The costs estimates must include confirmation that:- (a) they have been served on each other party, and (b) they have been discussed with the client.
- Orders will be required to contain a recital recording each party’s estimate of future costs.
- Costs estimates to be accompanied by a Statement of Truth.
- Parties must bring a copy of any estimate of costs filed and served to the hearing itself.
- Failure to comply with these provisions must be recorded on the face of the order and the defaulting party must be ordered to file and serve the costs estimates within 3 days of the hearing (or such other time as directed by the court) Richard Balchin 13th May 2020
Richard Balchin MCIArb is a Family Barrister and IFLA Arbitrator at Trinity Chambers