Why delay in financial remedy cases?

Financial remedy cases are up by 9 per cent year on year, and will be listed into already busy lists. The first appointment is the first opportunity for a judge to give directions under the Family Procedure Rules 9.15, or if a notice has been served by both parties pursuant to FPR 9.14(5)(d) and if time is available, treat the hearing as a financial dispute resolution appointment.

It is that second category of cases to which I refer in this article.

By application of the overriding objective in FPR 1.1(2), the judge must deal with a case justly by, so far as is practicable:

‘(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance, and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.’

By PD 9A.4.1: ‘The parties should, if possible, with a view to identifying and narrowing any issues between the parties, exchange and file with the court –

(a) a summary of the case agreed between the parties;

(b) a schedule of assets agreed between the parties; and

(c) details of any directions that they seek, including, where appropriate, the name of any expert they wish to be appointed.’

They should act in accordance with the annex pre-application protocol.

Time estimates

On the application being issued by form A, the court must list the first appointment not less than 12 weeks and not more than 16 weeks later (FPR 9.12). In many courts only a short time estimate will be given by the court staff, perhaps as little as 30 minutes, and if solicitors recognise that the time given will be inadequate, they should write to the court or make an application for the hearing to be vacated and relisted with an appropriate time estimate. The forms E must be simultaneously exchanged not less than 35 days before the first appointment, and if not the parties will need relief from sanctions, with the cost implications that follow.

Thus, on opening the court file, I often wonder under my breath why the solicitors have delayed and why nothing has been done so that I am prevented from giving the parties the financial dispute resolution hearing they clearly need.

Valuation of properties

First, why have they not agreed the value of the former matrimonial home, or of any investment properties owned by the husband and wife? Why have they not at least agreed the identity of an estate agent or chartered surveyor?

A minimum of seven weeks has been available for this simple step to be undertaken. I am so frustrated when the gap between the husband and wife is less than 10 per cent of the value and no earlier valuation steps at all have been taken. In many cases property is the only asset. The solicitors cannot be delaying deliberately… can they?

If the parties don’t want to pay for a valuation, there is nothing to stop them agreeing a valuation based upon Zoopla or some other website. Many of my colleagues do that already in preparation for the first appointment. It is much better for the solicitors’ clients to agree this in advance rather than feel they have had a valuation foisted upon them.

Even if one party is in person, valuations can and should be easily agreed. A friendly letter setting out the options for the other party is all that is needed.

Second, if there are investment properties, there should be enough time for the family accountant to calculate the tax implications of sale. A failure to ask for that calculation cannot be deliberate… can it?

It has been said that the court should take a broad, even a rough and ready, approach to the valuation of assets which are unlikely to make a significant difference to the overall value of the pot (B v B [2013] EWHC 1232). Don’t be surprised if the court takes this approach in order to apply the overriding objective… so why delay?

District Judge Nigel Law sits at Blackpool County Court and Family Court and is media and PR officer for the Association of District Judges