Meeting Summaries
The Family Justice Council Ancillary Relief Advisory Committee
Minutes of the meeting held on Wednesday 11 May 2005 11th Floor Thomas More Building Royal Courts of Justice
Present:
The Right Honourable Lord Justice Thorpe (Chairman)
The Honourable Mrs Justice Baron
The Honourable Mr Justice Bodey
The Honourable Mr Justice Wilson
The Senior District Judge
District Judge Duncan Adams
District Judge Edwina Millward
Professor Rebecca Bailey-Harris, University of Bristol
Simon Bruce, SFLA
Nicholas Cusworth, FLBA
Lynn Graham, Legal Services Commission
Philip Marshall, FLBA
Nicholas Mostyn QC, FLBA
Peter Watson-Lee, Law Society
Claire Johnston, Legal Group, DCA
Alex Clark, Family Justice Division, HMCS
Adrian Donaghey, Family Justice Division, HMCS
Jane Craig, Family Justice Council
Jeffrey Nedas, BDO Stoy Hayward LLP
Laura Russell (Secretary)
Announcements and apologies
1. The Chair informed the meeting that Richard Sax had sent his apologies and that he was also resigning from the committee. The Chair, on behalf of the committee, expressed his appreciation and gratitude for the work that Richard had done.
Minutes of the last meeting: 3rd November 2004
2. The minutes were approved.
Matters arising
3 Form E - Sub Group Up date
The Senior informed the meeting that there was now only 1 issue remaining and this was regarding future income. There were two views regarding this issue i) total income to be given for the next 12 months i.e. from the date the form was signed and ii) total income for the current financial year. The committee listened to argument regarding both views and voted in favour of view 1.
Nicholas Mostyn QC suggested that a fly sheet be added to the front of Form E requiring parties to indicate which documents they were filing. Peter Watson-Lee agreed to draft this document.
Alex Clark said that the revised Form E should go out for consultation. Several members felt that the changes were not sufficiently fundamental to warrant consultation with the wider professions. Alex responded that he would take these views into account when making a final decision regarding consultation.
Action: Peter Watson-Lee to draft a tick box front sheet for Form E to indicate which documents have been filed
3.2 Relationship with the FJC - Actioned
3.3 Any Other Business - Actioned
Any other business
5.1 Consultation on Routes of Appeal and Costs Reforms
Alex Clark spoke to the paper he had put before the committee. He informed the committee that the responses were equally divided for and against the proposal to abolish Calderbanks and on no order for costs. The FPRC supported the abolition of Calderbanks, and applying CPR Part 52 to all family appeals, but invited the committee's view on a number of issues.
The committee was asked for its view on Draft Rule 2.71 - orders for costs and abolition of Calderbanks. The committee wished to stand by its initial view that the starting point should be no order for costs. The committee believed that allowing greater discretion to depart from this would undermine the purpose of the reforms.
The committee was asked for its current view on the draft destination of appeals order directing ancillary relief appeals from DJs to the High Court.
Adrian Donaghey explained that since the last meeting, the Department had surveyed the courts to establish the ticketing arrangements currently in place for AR appeals. The survey highlighted the lack of a coherent national strategy but identified scope for the existing arrangements to be built upon.
The committee was divided but a number of members were now attracted to the ticketing route as a means of improving the quality of appeals in these cases. Some members still wished to press the case for these appeals to go to the High Court but Thorpe LJ reported the President's concerns about the capacity of the High Court bench to take on new work. He pointed out that the views of the President and the Lord Chancellor would be likely to determine the point.
The committee was asked for its view on a revised Form H. The committee agreed that the form needed a section added that asked for a "total costs" figure (in relation to ancillary relief proceedings). Baron J argued that this was important to alert the parties to the likely total costs of the case. It was suggested this "total costs" figure should also cover the costs of the suit itself and any related children or injunction proceedings but was not agreed. The committee felt that the form needed some other amendments to section C of the revised draft. The Senior and Peter Watson-Lee agreed to provide Adrian Donaghey with details of the further amendments by the end of May.
Action: The Senior and Peter Watson-Lee agreed to provide Adrian Donaghey with details of further amendments by the end of May
5.2 Financial proceedings under Prt 3 of the FPR (Application of Ancillary Relief Rules)
The Senior discussed the problem of extending these rules to civil partners when they refer back to old versions of the ancillary relief rules, no longer easily available. Although the production of the Family Procedure Rules would provide an opportunity to resolve this issue through modernisation of Part III, implementation of the Civil Partnership Act later this year provided an opportunity to make some interim changes. He outlined two possible approaches which were discussed briefly. The committee agreed that it would be preferable to include an interim solution as part of process of amending the FPR 1991 for civil partners. The Department agreed to look into this.
5.3 A More Certain Future (Pre-marital agreements in England and Wales)
This SFLA paper was circulated by Jane Craig. Members were asked to submit any comments they had on the paper to Simon Bruce within 28 days and the paper to be a substantive item at the next meeting.
Action: Members to submit any comments on the paper to Simon Bruce by 8 June 2005. Item to be placed on the agenda at the next meeting
5.4 Mrs Justice Baron asked the FPRC to look at the issue of documents being emailed to judges. This was allowed under the CPR and she thought that a workable solution could be achieved for family cases. The Senior pointed out that the President's Adoption Committee had considered this issue and decided against its introduction in adoption cases; however, he could not see why similar provision could not be applied to other family proceedings. The appropriate time to look at this would be as part of the process of producing the Family Procedure Rules when the CPR provided the backdrop.
Production of a report to the Family Justice Council setting out this committee's view of its future role for the October FJC meeting
4. The Chair informed the meeting that the report had to be before the Council at the meeting on 10 October 2005. He asked if the committee was content to continue to work as an essential sub-committee of the FJC. The committee agreed.
Date of next meeting
6. Wednesday 9 November 2005 at 4.30 pm in the Restaurant Area Thomas More Building Royal Courts of Justice Strand London WC2A 2LL.
Laura Russell
Secretary
12 May 2005
Tel: 020 7947 7950
Fax: 020 7947 7875
Email