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Family Law

The leading authority on all aspects of family law

25 NOV 2013

Evidence, Practice and Procedure: Thoughts on Case Management and Control of Evidence after Young and on the Threshold of the New Family Court

David Burrows

Solicitor Advocate

@dbfamilylaw

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsYoung v Young [2013] EWHC 3637 (Fam), [2014] 2 FLR (forthcoming) Moor J is well known for the sums of money involved (or not involved); the level of Mr Young's evasiveness and non-disclosure; and the extent to which the parties told the truth or grossly exaggerated their financial positions. The parties were criticised by the judge for the level of costs incurred.

 The courts powers in relation to case management and its control of lay and expert evidence must be analysed: were case management duties adequately observed by the courts and its powers used by the judges? Can the court's criticism of Mrs Young's costs be placed at its door, rather than hers? Such questions test the English family justice system, especially at the threshold of the new Family Court. Apart from the lies and the money (or lack of it) what did Young decide in the areas of evidence, procedure and costs?

Procedure and costs

On expert evidence and costs the judge said that ‘there should be rigorous control on the amount spent, in particular, on expert evidence. If the solicitors and clients are not willing or able to do so, the court will have to impose limits' on costs. But the judges have a duty to control expert evidence (FPR 2010, r 25.1), and can control lay evidence (r 22.1). How far was this done in Young?

The judge criticised, almost as ‘an abuse of process', the variety of interim applications made by the wife. The court has power to strike out such applications - subject to appropriate regard being paid to Art 6(1) - before they go anywhere (FPR 2010, r 4.3). How often were such powers used in Young? Such control of interim applications was bound to have an effect in a reduction of the wife's bill.

Evidence

Young dealt with a number of aspects of rules of evidence. Moor J 'reminded himself' that the burden of proving a fact is on the party asserting it [17]), balanced by a requirement that 'it is for the respondent to the application to provide to the applicant and the court all the relevant information'. Later he recalls the near impossibility of proving a negative (and see Nicholas Mostyn QC (as a deputy judge) in Rossi v Rossi [2006] EWHC 1482 (Fam), [2007] 1 FLR 790, at para [40]). The husband sought to avoid - evade even - an explanation as to what had happened to certain once-valuable shares by citing self-incrimination privilege. Moor J gave this argument short shrift [56].

The judge was critical of the range and limited usefulness of some of the expert evidence adduced. The courts already have the power to deal with control of such evidence as a matter of law (FPR 2010, r 25.1). The rule reflects the long-standing common law rule in all civil proceedings: that 'expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings' (a point made frequently by judges in children proceedings throughout 2013).

At an interim stage, Mostyn J conducted an 'OS/DS hearing' (after the case of OS v DS (Oral Disclosure: Preliminary Hearing) [2004] EWHC 2376 (Fam), [2005] 1 FLR 675). In fact the current rules do not expressly permit such a procedure (see FPR 2010, r 24.2). Pre-hearing production and a consideration of documents can be ordered (r 24.2(4)). Moor J found the results of the OS v DS exercise of limited usefulness. However, as a preliminary issue exercise, the concept of a pre-hearing consideration of evidence must be worth examining; provided the reasons for it and the extent to which issue estoppel applies to its findings are clearly understood in law.

Case management and control of evidence: reflections after Young

The Family Procedure Rules 2010 place case management and control of evidence emphatically in judicial hands. So long as a judge does not step over the Art 6(1) fair trial line, case management powers have been substantially increased since the introduction of the Civil Procedure Rules 1998. FPR 2010, r 1.4 ('duty' to manage cases, including defining issues for trial), and r 4.1 (powers of case management) with r 22.1 (power to control lay evidence) and r 25 (duty to restrict expert evidence) merely incorporate into family proceedings what was well known in most other civil proceedings twelve years earlier. (Emphases have been provided to show where the rule-makers intend the court to exercise a duty, as distinct from where powers are available.)

It remains to be seen whether any family justice administration lessons will be learned from Young, as the new Family Court approaches its unveiling in April 2014.

David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

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