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Family Law

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Court of Protection Practice and Procedure Conference 2016

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09 MAY 2013

Amy Royce-Greensill: The Jackson Five

Amy Royce-Greensill

Professional Support Lawyer


Amy Royce-GreensillAt the moment, I am updating our new Practice Notes to include the amendments made by the Jackson reforms. As a family lawyer, it was tempting to try to ignore them - but try as I might I couldn't. Family lawyers have to engage with the Civil Procedure Rules sometimes, for example in TOLATA 1996 proceedings. So I thought I'd jot down the main practical points for family lawyers that have arisen from my research. And it just so happens there are five main points, which made our editor here very happy indeed, brace yourselves for some excellent Jackson Five gags (I am sorry about this, truly).

1. You have to file and exchange a Precedent H (a ‘budget') early on in the case.

If your case is allocated to the multi-track (TOLATA 1996 applications tend to be), the Jackson reforms require a ‘budget' to be filed and exchanged early on (unless the case falls into one of the exceptions in CPR 1998 r 3.12(1)). The budget is in the form of Precedent H. It used to be the case that a Precedent H was filed before the trial (final hearing) but now one has to be filed much earlier - at the same time as filing the directions questionnaire or at least seven days before the first case management conference. Therefore, you will be drafting your budget at the same time as completing your directions questionnaire, right in the early stages of the case. Guidance for drafting a Precedent H can be found here http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/new-precedent-h-guidance.pdf. Easy as ABC (or not...).

The Precedent H is basically a very detailed costs estimate and parties are encouraged to agree them. The court will look at the budget when making case management decisions and will take into account the costs involved in each procedural step. The court may make a ‘costs management order' and if it does so will subsequently control the parties' budgets in respect of recoverable costs.

If you miss the deadline for filing a budget, you will be treated as having filed a budget comprising only the applicable court fees (best not miss the deadline then, ain't no sunshine if that happens).

We all know that the CPR provisions about costs are extensive to say the least (they seem to go on forever, like the Eternal Light). The Jackson reforms have made a lot of amendments to those rules, too many to go into detail about here. As a very, very brief summary, there is now an additional sanction for a defendant who fails to beat a Part 36 offer (up to 10% of costs or the value of the claim), as well as further rules about damages-based agreements and conditional fee agreements plus many other costs and funding-type amendments. If you want to take a more detailed look at these new provisions see CPR 1998, Part 36 and Parts 44-48 (the new bits are handily highlighted on the Justice website http://www.justice.gov.uk/courts/procedure-rules/civil/rules, although be careful clicking about on this website, I have clicked on a link and found myself being directed to the old version of the rules instead of the new ones, so double check what you're looking at - mostly it's ok though. If you have a subscription to Family Law Online the new amended rules are available there - We've got a good thing going).

2. Allocation questionnaires are now called directions questionnaires.

There has been a name change - allocation questionnaires are now called directions questionnaires. Don't use a N150 anymore - instead use a N180 or a N181. The N180 is the directions questionnaire for cases that the court provisionally allocates to the small claims track cases. The N181 is the directions questionnaire for cases that the court provisionally thinks are multi-track and fast-track cases. The court will not send you a copy of a directions questionnaire to complete like they used to with the allocation questionnaire, but instead will inform you how to obtain a copy (blame this on the boogie).

The time period for completing the directions questionnaire in multi-track and fast-track cases has been extended from 14 days after the date when the notice of provisional allocation was deemed to be served on the parties to 28 days, but together with drafting directions, the budget and a disclosure report the period leading up to the case management conference is going to be quite intense.

These new provisions are contained in CPR 1998, Part 26 (http://www.justice.gov.uk/courts/procedure-rules/civil/rules).

3. Multi-track claims now have some standard directions.

It used to be the case that multi-track claims did not have standard directions and practitioners borrowed and adapted the standard directions for fast-track cases. The two of us need look no more, multi-track cases now have their own standard and model directions, available here www.justice.gov.uk/courts/procedure-rules/civil/standard-directions (CPR 1998, r 29.1) and the rules require that any proposed directions in multi-track cases should take these as a starting point. Don't throw away your carefully crafted TOLATA precedents yet though, the standard directions on the Justice website are just that - standard - and they will need adapting to meet the needs of each case. In multi-track cases agreed or proposed directions have to be filed at court at least seven days before any case management conference. Don't blame this on the moonlight.

4. There is a new form called a disclosure report (Form N263) for multi-track cases.

The rules have expanded so that tailored disclosure (as opposed to just standard disclosure) can be used in multi-track cases. This means that parties involved in multi-track cases now have to file and serve a disclosure report in the form of N263 at least 14 days before the case management conference. Then, not less than seven days before the first case management conference (and on any other occasion as the court may direct), you have to contact the other side and, either in a telephone call or in a meeting, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective. Yes, the rules actually specify that you have to discuss disclosure by telephone or in a meeting, so it appears you can't just email them about it. Don't blame this on the good times.

The rules about the disclosure report are contained in CPR 1998, r 31.5 (http://www.justice.gov.uk/courts/procedure-rules/civil/rules).

5. The values for allocation to tracks have changed.

We're almost there. The top value for small-claims track cases has increased from £5,000 to £10,000. Fast-track claims are now cases with a value of more than £10,000 but not more than £25,000 (and expert evidence limited to two per party in two different expert fields).

These are just five practical points that I thought would be helpful to highlight for family lawyers wading through the new Jackson reforms. Of course there is a lot more to the Jackson reforms and a huge amount of commentary exists about them (Jordans Civil Court Service 2013 (the Brown Book) contains in-depth commentary on all of the reforms). The summary produced on the Justice website is quite useful as a starting point and gives an overview of the changes. It can be found here (http://www.justice.gov.uk/courts/procedure-rules/civil).

Ben (couldn't think of a way to crowbar it in, but it's a favourite here at Family Law HQ).

Adieu (I never can say goodbye).

Amy Royce-Greensill is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

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