Presenting financial remedy ‘needs’ cases
Rhys Taylor reflects upon the conduct and presentation of a 'needs' case referred to in the Family Justice Council 'Sorting out Finances on Divorce' Report.
The ‘Sorting out Finances on Divorce’ report, published in April 2016, follows a recommendation made by the Law Commission that guidance should be prepared on the meaning of ‘financial needs’ (para 3.88). Whilst designed with litigants in person in mind, it will also provide a useful aide memoire and source of guidance for practising family lawyers and courts alike.
It turns out that needs are as an elusive a concept as fairness. It all depends. They are a ‘very broad concept’. Check out the postcode. The higher the standard of living, the more refined the notion of need becomes. Cases with a pot of up to £5m are routinely described by the courts as ‘needs cases’. The needs case is what occupies the family lawyer for most of the time, despite what the law reports might have you otherwise believe.
There are certain common building blocks to a needs case, often seemingly overlooked in the charge to a final hearing. Sometimes it appears that the imperative to actually persuade the judge gets lost in the (admittedly, now PD27A reduced) paperwork. What often gets overlooked?
1. Sensible property particulars
These need to be pitched judiciously, in the right ‘parish’ of the case. The husband’s suggested particulars for the wife, on the ‘wrong side of the tracks’ (or next to the crack den), or the wife’s equally unrealistic particulars to trade up, are not persuading the judge of anything. To make a realistic needs pitch, and to actually be persuasive, the particulars must be in the right parish. Why not brighten up the judge’s day and provide nice colour photocopies?
2. Realistic mortgage advice
Often obtained at the last minute, sometimes the wife appears bent on demonstrating that she cannot borrow anything. Everyone in the judge’s chambers knows this to be untrue; the wife just asked the high street rather than an independent broker. There are some lenders who will look at non-standard income. The court also needs to know, crucially, the monthly repayments resulting from a particular level of borrowing. If either party is going to be difficult with this kind of evidence, consider asking for a joint mortgage report at the first appointment.
3. Proper outgoings schedulesWhether in a Form E or otherwise, an outgoings’ schedule should be prepared with ‘the door of the court anxiety’. For quantifying maintenance, the emphasis is now firmly on meeting needs only, so the outgoings’ schedule must accurately describe them. The outgoings’ schedule is going to be pored over at a final hearing. Most lawyers will, at some point in their career, have encountered a ‘lazy-five-line’ outgoings’ schedule (rent, food, petrol, Sky and credit cards). These perform a woeful service to the claimant who has many more genuine needs to tell the court about. The ‘greedy-lottery-wish-list’ at the other end of the scale is also missing out on that vital opportunity to persuade the court. When drafting or settling the outgoings’ schedule, imagine you (personally) are going to have to defend it before your least favourite judge in the next 5 minutes. Give plenty of notice to the other side if you are seeking a capitalisation.
4. Pension reports
There are going to be an awful lot of negligence claims over the next few years concerning pension advice on divorce. Section 25 discretion will not be a big enough fig leaf for some howlers. Know the difference between legal advice and regulated financial advice, which you should not be giving. Give the client time to seek financial advice. Make sure that a pension report is asked for in appropriate cases – generally for defined benefit schemes and non-standard investments. If the judge declines the request for a report, at least you can tell your insurer/regulator that you asked.
5. The evidence
In order to comply with PD27A thought should be given at the first appointment as to what documents will need to be before the court at final hearing. Will they breach the 350 limit and does permission for a bigger bundle need to be sought and justified? The ‘matrimonial debt’ and ‘add-back’ argument (if advanced) need settling into a narrative statement, exhibiting the relevant bank statements. If your client seeks maintenance she must normally evidence reasonable attempts to ‘get a job’.
6. Open offers
FPR 2010, r 9.28 – Applicant 14 days before the final hearing; Respondent 7 days before. This rule is often honoured in the breach only. To hit this target family lawyers need to ‘front load’ their work more. If counsel is to be instructed, an early conference needs booking to discuss the realities of the case, the content of the bundle and how the client wishes their case to be put. For the leverage of persuasion, again, the open position needs to be in the right parish (make an open offer on the ‘wrong planet’ at your peril). An early and well-pitched open offer might also be helpful on an issue of costs. Think ahead.
7. The case summary
The written summary is key, oral advocacy is only part of the job these days and many financial remedy cases do not turn on the live witness evidence. The case summary may be the only document the judge reads before the case starts. Keep it as simple as circumstances permit. Make sure yours is delivered. Emailing it the day before is no guarantee in most courts that the judge will actually have seen it. Deliver by hand if necessary; just make sure the judge has it. If counsel is instructed, do so early enough to allow plenty of time for the content of the draft case summary to be prepared, discussed and approved by the client well before the day of the final hearing. Again, front load the work and don’t leave it until the door of the court is in sight.
8. The big picture
Financial remedy applications are not usually decided on the ‘nit-pick’. Have a big narrative. Stay on the main road, paint with the broad brush (the judge sometimes uses a roller) and remember that judges don’t like rummaging around in the attic of a failed marriage.
Rhys Taylor is a family law barrister based at 30 Park Place in Cardiff, South Wales and at 36 Bedford Row, London. You can follow him on Twitter @RhysTaylor32.
The Family Justice Council has launched a new financial guide to help people going through a divorce without a lawyer.
Available online from the Judiciary website and Gov.uk, 'Sorting Out Finances on Divorce' is intended to demystify what is a complex area of law which many litigants in person may find intimidating.
It provides a succinct summary of the law to help those who cannot afford legal advice to reach financial agreements without the need to go to court. The guidance is specifically aimed at non-legal readers and its primary purpose is to provide a road map through what is often, for many, uncharted territory. It applies to marriages and civil partnerships.
Sir James Munby, President of the Family Division and Chair of the Family Justice Council, said:
'The objective in all cases is to achieve a result which reflects the best possible outcome for each family. In this context, the guide provides a general overview of the law, as well as a detailed explanation of particular issues which are likely to arise, such as maintenance, housing and pensions. It also includes useful examples and FAQs, and describes what a judge is likely to do in similar cases.'
The guide is a response to the Law Commission's recommendation in its 2014 report on Matrimonial Property, Needs and Agreements for the need for greater charity regarding the distribution of assets and the determination of financial needs on divorce and civil partnership dissolution.
It follows a shorter, plain English version of the 'Sorting Out Finances on Divorce' guide designed and hosted by the charity AdviceNow.
The financial guide 'Sorting Out Finances on Divorce' is available to download here.
Access to the law: time for a big bang?
Access to justice has always been on the agenda. Access to the law is different. Don’t citizens of a country have the right to know what the law is? If the law is complex (and it is) shouldn’t citizens have access free of charge to a clear description of the main rules and cases?
In his address to the FLBA on 26 February 2016, the President of the Family Division said, ‘we are now moving towards a new phase of reform; reform so fundamental that in retrospect the great reforms implemented in April 2014 will seem modest in comparison’.
Part of the reforms relate to transparency. His Lordship notes, ‘we must constantly strive to improve, to streamline and to simplify the system’.
Some of the new reforms are ambitious. In respect of ‘digitisation’, the President expressed the hope that the process will be supported by ‘equipment much better than the elderly and inadequate kit to which we are at present condemned’. Further: ‘The visible consequences of this will be court buildings rather different in design and function to what we are accustomed to.’ Time will tell whether the funding is available to meet these worthwhile aspirations.
His Lordship referred to ‘the digital court of the future with its large population of unrepresented litigants’. In this regard he states: ‘We need an entirely new set of rules ... The Family Procedure Rules are a masterpiece of traditional, if absurdly over-elaborate, drafting. But they are unreadable by litigants in person and, truth be told, largely unread by lawyers. They are simply not fit for purpose ... Rules to the extent that we still need them, must be short and written in simple, plain English.’
There will be many who support the President’s zeal for reform. It is right to acknowledge however, that the rules were written by lawyers for lawyers. They are designed to be precise and to achieve another objective, certainty. The rules of Part 25 regarding experts, for example, are complex but they were designed to end another problem: the battle of the experts which has previously caused so much delay and cost. If there is to be a re-writing of the rules, the task will be an onerous one.
It is suggested that however skilful the drafting, what will still be needed is a network of support and information about family law and the family law process. Much is already available. An excellent starting point for this is the House of Commons briefing paper: ‘Legal help: where to go and how to pay’, dated May 2015.
The report details a plethora of advice available via law centres, Citizens Advice Bureaus (over 3,000 locations in the UK) and pro bono legal advice schemes. In addition to these general legal advice resources there are an increasing number of sources of information and support for those in family law disputes. To take just a few examples:
- - The personal Support Unit now based in 13 cities in the UK;
- - Law for Life (incorporating AdviceNow);
- - A number of well-written publications including the excellent DIY Divorce and Separation: the Expert Guide to Representing Yourself by a group of family law barristers and published by Jordan Publishing
- - Various schemes in local court centres; to take just one, in Bristol, a number of lawyers (not the author), supported by the Designated Family Judge have put on a number of events to provide free information to litigants about how the process works.
It is right to say that opinions amongst lawyers as to such initiatives differ. The response of some to those who support a pro bono agenda has been hostile. The reality however, must be that access to the law and what the legal rules are is a fundamental right. Those who are in the best position to provide such information are the lawyers. It is understandable, in a world where legal aid cuts have hit home, that some are sceptical, but ultimately to decry these efforts is to say those who have less money should have less justice. The reality too, is that those who can afford to pay for legal advice will continue to do so. Ultimately lawyers who assist access to justice improve the standing of the profession. The well-known quotation from the Bible illustrates as little else can, the reason for distrust of the profession going back centuries: ‘Woe unto ye lawyers. For you have taken away the key of knowledge.’
It is suggested that the President’s energy and momentum should be joined. The spread of specific legal information is of value to a democratic society. It can reduce the uncertainty, pain and stress of those attending the courts. It can make life more bearable for the judges. It will save time so that all cases can be dealt with more quickly, including those where people are legally represented.
Note: On top of the presently available material, it is suggested that easily digestible information is key. The author has launched a website aimed at providing a video overview of the financial remedies process from start to finish. You can view it here: www.davidondivorce.co.uk. Further development is underway, with the intention that the site should represent a comprehensive family law resource.
Standing alone: going to the family court without a lawyer
by the Citizens Advice Bureau
The family courts are vital in helping people resolve a range of issues. However, the way people use them is changing. Since funding for legal aid was reduced in 2013, there has been an increase in the number of people going to the family courts without a lawyer (as a ‘litigant in person’). Two-thirds of our advisers report an increase in the number of people they see going to court without representation since 2013.
Although some people find the experience of self-representation positive, the majority found self representing difficult, time consuming and emotionally draining. As well as a bad experience for court users, it also means litigants in person achieve worse outcomes compared with their represented counterparts.
Nine in ten litigants in person say it affected at least one other aspect of their life. Standing alone: going to the family court without a lawyer explores the four key areas affected: mental and physical health, working lives, finances and relationships.
The report identifies eight ways to improve the process of going to the family court alone:
1 Litigants in person need a clear way to navigate through the court process.
2 Information should be easy to find, consistent, reliable and user-friendly.
3 Paperwork and processes should be designed with the layperson in mind.
4 The physical court environment must help, not hinder, litigants in person.
5 Litigants in person need the tools to cope with pre-trial negotiations.
6 Guidance for legal professionals needs universal adoption.
7 People need more information to make the most of lawyers' services.
8 Evidence requirements shouldn’t be a barrier to those eligible for legal aid.
The report makes three key recommendations about how courts, professionals and other service providers can address these challenges:
1 Litigants in person need access to reliable advice and information to determine the validity of their case; investigate alternatives to court; progress their case through different stages; represent themselves effectively and deal with outcomes.
2 Processes, physical courts and professionals’ behaviour should respond to the increased numbers of litigants in person by ensuring best practice for working with laypeople is provided consistently.
3 Support for vulnerable people should be more easily accessed. Victims of domestic abuse should be able to access the legal advice and representation to which they are entitled. Other vulnerable groups, such as people with mental health problems, should be signposted to appropriate services.
Standing alone: going to the family court without a lawyer forms part of a programme of work exploring how well the justice system works for the public.
The full report is available to download here.
Errors in old Form E1 version
By Amy Saunders
22 FEB 2016
Back in December 2015 it emerged that the Ministry of Justice website, which offers a range of court forms to download and use online, had an error in the liabilities section of Form E, rendering calculations done on the website incorrect and meaning financial totals didn't take into account the party's debts.
An urgent investigation into the problem was ordered by Minister Shailesh Vara, and it transpired that 3,638 files contained the faulty calculator version of Form E with an incorrect net assets figure in the summary table. 1,403 of these cases were still live and so could be intervened in directly by HMCTS to flag up any error and they were instructed to write to all parties in the 2,235 closed cases.
It was believed the calculator problems ended here; however, the Justice Secretary, Michael Gove, has now announced in a letter to the Chair of the Justice Select Committee that a version of the Form E1 (used in financial applications under the Children Act 1989) also contained an incorrect formula which, like the Form E, meant that the automatic calculator in the form had calculated the wrong total for an individual's net assets by failing to deduct certain liabilities.
The investigation found that the faulty formula was present in the version of Form E1 available on the HMCTS Form Finder website between April 2011 and March 2012.
HMCTS has conducted a search on a set of 459 cases that have a record of a financial application or a reference to Form E1 having been filed during this period. Any Form E1s found were checked to see if they contained the calculation error, and, if so, whether the error was present. From this trawl, three Form E1s have been said to contain the calculation error.
Whilst the MoJ is confident they have identified the vast majority of cases that could have been affected by the error, anyone concerned about their case can write to them to have their case checked by using the email address set up for the previous issues: formE@hmcts.gsi.gov.uk.
HMCTS have issued an apology to anyone affected, and will once again be writing to all parties in the three cases identified.
Officials are also consulting the President of the Family Division about the court rules and procedures that would apply to such applications or for any other proceedings that might be open to the parties and on the development of a specific form for such applications.
The current version of Form E1 now has the correct calculator functionality.
For regular information and news, our DIY Divorce page has useful guidance, links and sample forms. We also have a range of family forms including Forms E and E1 within AutoDocs in PracticePlus, our integrated online resource which brings together practice notes, flow charts, links to key commentary, legislation, forms and precedents.
The forms within AutoDocs have been developed by our PSL and technical teams, and are compiled using specialist software. They are not affected by the errors contained in the MoJ systems.
For any queries or for a free 14-day trial of PracticePlus, please contact our account management team on 0117 917 5134.
LiP friendly private law orders released
By Amy Saunders
26 JAN 2016
Given that the audience for such orders can now find themselves largely unrepresented, it was important to make the drafts concise and as simple as possible. AdviceNow assisted with suggestions on the use of accessible language.
Work has been done on reducing the prescriptive nature of the recitals which were felt to be too lengthy, and removing the requirement for certain information to be included on the face of orders. The Family Procedure Rules committee has agreed to amendments to Practice Direction 12B to accommodate this change.
The penal and warning notices required by CPR 89.1 are now displayed on the front of the order to ensure the order can be enforceable.
It is hoped that many judges and justices' legal advisers will use the Judicial Template to produce new orders. Tick box forms have been drawn up for those unable to use the Templates. To try and keep the forms manageable they are separated into three sections:
- A: Allocation and Gatekeeping;
- B: Case Management Directions and Section 8 and other Orders; and
- C: Enforcement.
Whichever method is used to produce the orders, it is hoped that parties will be able to leave court with a copy of the order made at the hearing whenever possible, and it is anticipated this will usually be achieved if the Template is used.
The drafts have been made available to circulate to encourage consistent drafting.
If judges and justices' legal advisers need help installing the current version of the Template, District Judge Bill Vincent has offered to assist, and can be contact by email at either firstname.lastname@example.org or email@example.com.
The drafts can be found here.
The President's announcement is available to download here.
Surge in 'DIY' justice sparks guidelines for lawyers
A surge in the number of people representing themselves in court has prompted legal organisations to draft guidelines for lawyers who come up against people who find themselves in court without legal representation.
The guidelines have been developed by the Bar Council, Chartered Institute of Legal Executives (CILEx) and The Law Society in response to the rising numbers of people representing themselves in court without a lawyer as a result of cuts to legal aid, the increase in the small-claims limit and the introduction of employment tribunal fees.
The practical guidelines are relevant to the civil and family courts and tribunals, where there has been an influx of people who cannot afford to instruct a lawyer, have not been able to obtain free legal advice and often have no alternative other than to embark on 'do it yourself' justice.
The guidelines discuss how far lawyers can help unrepresented people without this conflicting with their duties to their own clients. Lawyers are advised to communicate clearly and avoid technical language or legal jargon, or to explain jargon to the unrepresented party where it cannot be avoided.
Law Society president Andrew Caplen said:
'Cuts to legal aid and increases in court fees have forced more and more people into "do it yourself" justice, where they find themselves dealing with unfamiliar procedures in busy courtrooms whilst trying to resolve often life-changing issues regarding their families, their homes and their futures. We recognise the difficulties that people face in these circumstances and the consequent challenges created for lawyers acting for represented parties. We hope that these guidelines will help everyone concerned with cases involving self-represented litigants, but would again emphasise that the cuts to legal aid need to be urgently reviewed by the incoming parliament.'
Chairman of the Bar, Alistair MacDonald QC, said:
'The people who lose out most from the rising tide of litigants in person are the litigants themselves. It is one of the worst outcomes of the legal aid cuts that people facing major life events such as a family break up, have little choice but to put their case alone and without legal support or representation. It would have been easy for the legal profession to sit back and let the chaos play out in order to highlight the full impact of the cuts. However, we believe access to justice is a fundamental part of the rule of law and are doing all we can to help limit the impact upon those who find themselves in this dire situation. As well as supporting this initiative, in 2013 the Bar Council produced A Guide to Representing Yourself in Court, with the specific aim of giving litigants in person a better understanding of how to represent themselves in court. However, there is only so far the legal sector can go in tackling this problem. It won't go away unless the cuts to civil legal aid are restored so that those of limited means can, again, have proper access to justice.'
CILEx president Frances Edwards commented:
'In drafting these guidelines we have sought to give useful information so lawyers can best support those without legal representation. The ability of any litigant to have access to justice should be the key outcome of our legal system yet, at present, traversing the justice system in the best of circumstances is a challenge, and we expect to see litigants in person in substantial numbers for many years to come. Therefore, whilst we hope these guidelines will help, it does not alter the need to ensure litigants are placed at the heart of the justice system. Meanwhile, we will continue to press for the cuts to legal aid to be reviewed so that legal help is available to those who need it, and maintain our campaign for better access to justice and legal assistance for all.'
Lord Dyson, master of the rolls, commented:
'I warmly welcome the publication of these joint professional guidelines, and the collaboration of the three leading professional bodies in producing a valuable and timely reference for lawyers.
'An increasing number of litigants in person are coming before courts and tribunals in all jurisdictions, and the challenge for all of us in the justice system is to make sure that everyone is treated equally, fairly and impartially and according to the law.
'This presents particular challenges for practitioners, with the interests of the client and the duty to the court seemingly coming into conflict. However, ultimately, a client is best served by a fair and transparent system.'
The guidelines and accompanying notes are available to download below:
Litigants in Person Guidelines for Lawyers - June 2015
These Guidelines are intended to offer practical advice to lawyers on good practice that is broadly applicable across the civil and family courts and tribunals.
Litigants in Person Guidelines for Lawyers - Notes for Clients
These notes explain how one's lawyer will deal with the other side in a court case if they are representing themselves.
Litigants in Person Guidelines for Lawyers - Notes for Litigants in Person
These notes are to help litigants in person understand what to expect (and what to not expect) from the lawyer for the other side in court proceedings.
Litigants in Person Guidelines for Lawyers - A Selection of Relevant Cases
This guidance is co-authored by the Bar Council, Law Society and CILEx. It is reproduced here with permission of the copyright owners.