On the 24th January 2016, Mr Justice Mostyn issued updated guidance on the conduct of financial remedy proceedings in the High Court (see here).
It lays down important new rules concerning skeleton arguments and reiterates and reinforces other key messages about court bundles and the requirement to agree a Statement of Issues, Schedule of Assets, Chronology and Bundle of Authorities.
Most notably, the length of skeleton arguments for each stage of financial remedy proceedings has been prescribed:
The guidance specifies that these limits may only be departed from for a Final Hearing, and only where a direction has been obtained at a Pre-Trial Review, when “very good reasons” would have to be shown in support of such a direction being made.
To keep practitioners within these limits, extensive quotation from authority or from documents in the bundle is to be avoided. Where reference to an authority is necessary, practitioners must first state the proposition of law that the authority demonstrates and then identify the parts of the authority that support the proposition, but without extensive quotation. Page numbers and marginal references are likely therefore to suffice in almost all cases.
The consequence of failing to adhere to these limits is put in stark language:
“A skeleton argument which breaches the limit will be returned unread for abridgment”
One cannot imagine a worse start to the first day of a final hearing…
Agreed Statement of Issues, Schedule of Assets and Chronology
The guidance also reminds practitioners of the “indispensable requirement” to provide an agreed Statement of Issues to be determined at a final hearing (FPR PD27A, para. 4.3(b)).
To this must be attached an agreed Schedule of Assets and Chronology, on which any un-agreed items or events must be clearly denoted.
It is said to be:
“…absolutely unacceptable for the Court to be presented at a final hearing with competing asset schedules and chronologies”
With wording such as this, practitioners can be in no doubt about the severity of non-compliance (or of the likely consequences – see ‘Disallowing Fees’ below)
Updating this guidance also provided Mr Justice Mostyn with another opportunity to reiterate the strict requirements in relation to Court bundles.
Bundles must “scrupulously” comply with FPR PD27A and not contain more than 350 pages, including skeleton arguments and the agreed Statement of Issues, Schedule of Assets and Chronology.
Bundles should only contain documents that are relevant to the hearing and which it will be necessary for the Court to read, or which will actually be referred to during the hearing.
The following must not be included unless a specific direction has been obtained at the Pre-Trial Review (FPR PD27A, para.4.1):
Practitioners should note that the above may be subject to further change as a result of changes to FPR PD27A currently being proposed by the President of the Family Division, Sir James Munby, in response to what he has described as “fitful” compliance with the rules on bundles to-date (see here).
Bundle of Authorities
A separate bundle of authorities must be agreed between the advocates (PD27A, para. 4.3) and should not contain more than an “absolute maximum” of 10 authorities.
Developing on this, Mr Justice Mostyn specifically refers practitioners to paragraphs 9 – 25 of the decision of the President in Re L (A Child)  EWFC 15 and confirms that these pronouncements apply fully to financial remedy hearings.
In light of the President’s wording, practitioners again can be in no doubt as to the severity and potential consequences of non-compliance:
“25. The judges of the Family Division and the Family Court have had enough. The professions have been warned”
An unreasonable failure to adhere to the above guidance puts practitioners at a risk of an Order being made disallowing a proportion of their fees pursuant to CPR 44.11(1)(b) and or s.51(6) Senior Court Act 1981.
Much of what Mr Justice Mostyn has set out is already contained in the FPRs and PDs and makes considerable sense in ensuring the efficient conduct of financial remedy cases.
At the same time some of the requirements, for example those relating to bundles, are frequently observed in the breach.
This new guidance provides the Bench with a further stick with which to beat a digresser, and although historically Orders disallowing a proportion of a practitioner’s fees have rarely been made, given the strength and directness of the language used in this guidance and the recent cases addressing these issues, it seems likely that greater use may be made of this power in the future.
As the President has said, we “…have been warned”!!