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Family Law

The leading authority on all aspects of family law

19 JAN 2015

Something to be done: after J v J

David Burrows

Solicitor Advocate

@dbfamilylaw

Something to be done: after J v J

Excessive cost of ancillary relief litigation

In J v J [2014] EWHC 3654 (Fam) Mostyn J took the opportunity to berate lawyers for their expenditure on proceedings for ancillary relief (as the judge says, this remains the statutory term for financial provision following divorce). Mainly he was concerned at excessive expenditure on accountancy evidence and the scale of the bundles of documents. The assets totalled around £2,885,000 to be divided in the following proportions, said Mostyn J (in italics below – the proportion of the assets to go in costs and accountants fees is shown):

'[58] … from the pre-costs starting point of £2,885,000 the wife will receive £1,123,500 (38.9% of the assets); the lawyers and experts will receive £920,000 (31.9%); and the husband £841,500 (29.2%). These figures speak for themselves. Such a result should not be allowed to happen again.'
In January [2015] Fam Law 73, barrister Ashley Murray raises a ‘practitioner response’ to the case and the editor asks for comments. Let this be an extended response to that invitation. My starting point is to recall one or two principles of law (evidence and procedure) and then to look at the upshot – mostly in terms of case management – of J v J.

First, and as a matter of law, rules cannot create or change substantive law. They can only deal with procedure (‘how the existing jurisdiction should be exercised’). This was explained by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, where a party was trying to persuade the Court of Appeal that a new rule had swept away all old law in that area of jurisprudence (CPR 1998, r 52.17 – the power of the Court of Appeal to review its own decision). So:

'[7] …. [counsel for the appellant sought to persuade the court that CPR 1998 r 52.17] prevailed over any previous jurisprudence that might be argued to limit the jurisdiction to any particular category of cases, for instance where the earlier decision had been obtained by fraud. Accordingly, the court should not take time with analysis of Taylor v Lawrence [the existing lead case], or of the cases underlying it, but should ask itself whether this appeal should be reopened in order to avoid real injustice in a broadly discretionary, essentially palm-tree, frame of mind.

[8] That approach is quite misconceived. The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law…'
Parties have a duty to each other and to the court to provide no more than relevant disclosure (Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813) and that by list (FPR 2010, r 21.1). ‘Relevant’, in Livesey, is a reference to the basic rule of evidence that only evidence which is relevant to an issue for trail is relevant. The requirements of Form E set out in FPR 2010 Part 5 are ultra vires the common law and the routine rules of evidence.

A party discloses what he considers to be relevant and if he chooses to include an accountant’s report (and thereby waive litigation privilege) he is entitled to do so (despite, with respect, what Mostyn J says at para [45] where he criticises Mr J for disclosing a report from his accountant). There may be every reason however (see below) why the court should not permit that report in.

The common law rule in relation to opinion evidence is that parties are entitled to seek permission to put evidence before the court (FPR 2010, r 25.4(3)) and, yes the court will only permit the evidence to be adduced if it ‘considers it necessary to assist the court’ (in family proceedings). But this and the single joint expert question which so concerned Mostyn J were, surely, case management issues (FPR 2010. r 1.4(2)(e) – controlling use of expert evidence). District Judge Robert Jordan wrote of ‘robust case management’ in his eponymous article in [2014] Fam Law 395 (where he points out that for district judges familiar with Civil Procedure Rules 1998 the FPR 2010 case management rules contain no surprises).

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Case management

Mostyn J’s concern was with case management. His starting point was the ‘something must be done’ comment of Munby J in KSO v MJO and JMO (PSO Intervening) [2008] EWHC 3031 (Fam), [2009] 1 FLR 1036 where Munby J compared that case to Jarndyce v Jarndyce, and quoted from chapter 65 of Bleak House as follows:

‘Something must be done about the problems highlighted by this and by too many similar cases. We simply cannot go on as we are. The expenditure of costs on the scale exemplified by this and by too many other such cases is a scandal which must somehow be brought under control.' 
Mostyn J observed:

'[11] Although the mantra "something must be done" is repeated time and again, nothing ever is. In the ancillary relief field the mantra has been incanted over and over ever since the iconic judgment of Booth J in Evans v Evans [1990] 1 FLR 319.'
It was Evans which, in part, led to the 1996 ‘pilot scheme’ of which Mr Nicholas Mostyn (as he then was) was an important architect and (perhaps?) draftsperson of what became Form E. At the same time – 1995-6 – Lord Woolf’s committee on civil procedure was debating what led to the Civil Procedure Rules 1998 with their overriding objective and case management rules (now also part of FPR 2010, rr 1.4 and 4.1). The ‘something must be done’ refers to case management and yet rarely does this procedural aspect – which reflects on the judiciary itself – come in for High Court judicial examination in ancillary relief cases.

J v J had three valuation accountants in it, the first being that of the husband. He could have been ruled out by the court immediately as not being properly impartial (the basic principles in National Justice Compania Naviera SA v Prudential Assurance Co; the Ikarian Reefer [1993] 2 Lloyd’s Rep 68, [1993] FSR 563 at 565 (Cresswell J) would have seen to that).

Valuation: preliminary issue hearing essential for any mediation/FDR hope

A preliminary issue hearing could – should – have been fixed for definition of the valuation; for, without that valuation being the subject of a judicial determination, any FDR (there were two in this case) – or realistic mediation – were likely to be impossible. (Directions as to a preliminary issue is considered by my  ‘Case management and the family court: Part 1’ in [2014] Fam Law 319 and see TL v ML, MCL and CL (Ancillary Relief: Claims against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263, Nicholas Mostyn QC sitting as a High Court judge). Preferably, this could have been done with one single joint expert and even the preliminary issue made unnecessary - but you cannot compel a single joint expert. A decision on valuation – where there may legitimately differing views – is the judge’s job.

The fact that the case took as long as it did – even the original time estimate of 5 days seems long – suggests poor case management. Bundles must be restricted, as Mostyn J says, and that is the responsibility of the parties. But Form E starts everyone off on the wrong foot by making no attempt to limit disclosure to matters in issue. If the first court appointment in every case had, as part of its remit, to define issues in writing (agreed and recorded by the court before it ended) and a statement of what documents only need be produced at that stage (and family lawyers have yet to embrace the requirements of e-disclosure) then that would keep production within bounds at an early stage and would avoid the grape shot approach encouraged by the present FPR 2010 Part 9 procedure. (The present restriction rules – FPR 2010, rr 9.14(4) and 9.16(1) – are, of course, ultra vires the common law as well but little notice is taken of them in J v J.)

Were production to have been kept under control by the court, were the relatively few issues to have been defined clearly from early on (and evidence restricted accordingly: FPR 2010, r 22.1) and had the preliminary point concerning the valuation of the husband’s shares been dealt with pre-FDR, this case might have settled. Failing that, it would have cost appreciably less.

As to bundles, Mostyn J suggests a sort of, as Ashley Murray puts it, Star Chamber where lawyers will be put to the appropriate open court level of racking:

'[52] … Since then the Practice Direction has been incorporated within the FPR and reissued on 10 April 2014 in its current form incorporating the one bundle rule. But routinely the profession pays no attention to it. Again, it is no use the courts feebly issuing empty threats. I intend to draw this also to the President's attention with a view to him raising this further pressing matter as a matter of urgency with the Family Procedure Rules Committee. Perhaps it will be necessary for him to set up a special court before which delinquents will be summoned to explain themselves in open court…'
Matthew 7:1 asserts: ‘Judge not that ye be not judged’. Yes, there are still massive overspends on all sorts of civil litigation. To bring on a case for trial in English civil law is not cheap. Existing procedures do not always help. A massive benefit of the procedural rules since 1999 has been case management. That is there for the courts. That is the ‘something’ the judges have to use for getting ‘things done’. Avoiding Jarndyce, Evans v Evans and J v J is, in my opinion, collectively in judicial hands.



Further online comment on this case is welcome. Please email editor@familylaw.co.uk. Alternatively comment below or join the conversation on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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