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Attention: Imminent Rule Changes by Emily Ward

Thu 5th Mar 2020

Attention family lawyers. Rule changes are on the horizon. The date to watch out for is 6 April 2020, although some come into force on 6 July 2020.

You can find the rule changes here: http://www.legislation.gov.uk/uksi/2020/135/contents/made

But until you get chance to delve into the detail, here is a quick roundup…

Communicating the court – Rule 5.7

The rule changes see the advent of a new rule in relation to communications with the court. It will be FPR Rule 5.7.

In summary it provides that:

  • Any communication between a party to proceedings and the court must (so it is mandatory) be disclosed to, and if in writing (whether in paper or electronic format) copied to, the other party or parties or their representatives – Rule 5.7(1).
  • This applies to any communication on which any representation is made to the court on a matter of substance or procedure. It does not apply to communications that are purely routine, uncontentious and administrative – Rule 5.7(2).
  • New Rule 5.7(3) provides that a party is not required to disclose or copy a communication if there is a compelling reason for not doing so. If there is and the communication is not disclosed, the reason must (so mandatory again) be clearly stated in the communication. Compelling reason is not defined.
  • A written communication copied to the other party or parties, or their representatives, must state on its face that it is being copied to that person or those persons, stating their identity and capacity – Rule 5.7(4).
  • Unless the court directs otherwise, a written communication which does not comply with paragraph (4) will be returned to the sender without being considered by the court, with a brief explanation of why it is being returned.
  • In addition to returning the communication unread, the court may also, where a party fails to comply with Rule 5.7(1),) the court may, subject to hearing the parties, exercise its case management powers under Part 4 (which include the power to strike out).
  • Rule 5.7(1) does not apply to communications authorised by a rule or practice direction to be sent to the court without at the same time being provided to the other party or parties or their representatives.

This rule, as with others, applies to litigants in person as much as those with representation.

Costs

The Family Procedure Rule Committee (FPRC) established a judicially-led working group (the Costs Working Group) in late 2018 to review the functioning of the current costs regime in financial remedies cases and to make recommendations, including amendments to the Family Procedure Rules and supporting Practice Directions. The FPRC Costs Working Group are particularly keen in encouraging parties to engage reasonably and responsibly in settlement negotiations. A consultation opened (although it is now closed) to seek views as to whether the FPR 2010 should be amended to enable any offers which are made “without prejudice save as to costs” (known as Calderbank offers) to be taken into account as “conduct” when the court is considering making an order requiring one party to pay the costs of another party. The outcome of the consultation and any recommended changes is awaited.

However, in May 2019 PD 28A was amended to include the following at paragraph 4.4:

‘In considering the conduct of the parties for the purposes of rule 28.3(6) and (7) (including any open offers to settle), the court will have regard to the obligation of the parties to help the court to further the overriding objective (see rules 1.1 and 1.3) and will take into account the nature, importance and complexity of the issues in the case. This may be of particular significance in applications for variation orders and interim variation orders or other cases where there is a risk of the costs becoming disproportionate to the amounts in dispute. The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court. Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.’

The new changes coming into effect in April 2020 focus, in large part, on costs and costs estimates.

The new rule changes appear to be based on recommendations of the Costs Working Group. The most recently published minutes from the Family Procedure Rule Committee meeting in December 2019, can be read here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/865406/fprc-dec-2019-minutes.pdf

Rule 9.27 – Estimates of costs

The soon to be old rule 9.27 provided that, at every hearing or appointment each party must produce to the court an estimate of the costs incurred by that party up to the date of that hearing or appointment, and in relation to the final hearing, not less than 14 days before the date fixed for the final hearing of an application for a financial remedy, each party must (unless the court directs otherwise) file with the court and serve on each other party a statement giving full particulars of all costs in respect of the proceedings which the filing party has incurred or expects to incur, to enable the court to take account of the parties’ liabilities for costs when deciding what order (if any) to make for a financial remedy.

This rule will be substituted for the new rule 9.27. In addition to the requirements concerning costs estimates, there will be new requirements that a copy of the costs estimates or full particulars of costs be brought to each hearing, and also that specific information is recorded within the order. Should you fail to comply, there will be a recording to that effect too!

Here goes:

  • Rule 9.27(1) – Not less than one day before every hearing or appointment, each party must file with the court and serve on each other party an estimate of the costs incurred by that party up to the date of that hearing or appointment.
  • Rule 9.27(2) – Not less than one day before the first appointment, each party must file with the court and serve on each other party an estimate of the costs that party expects to incur up to the FDR appointment if a settlement is not reached.
  • Rule 9.27(3) – Not less than one day before the FDR appointment, each party must file with the court and serve on each other party an estimate of the costs that party expects to incur up to the final hearing if a settlement is not reached.
  • Rule 9.27(4) – Not less than 14 days before the date fixed for the final hearing of an application for a financial remedy, each party (“the filing party”) must (unless the court directs otherwise) file with the court and serve on each other party a statement giving full particulars of all costs in respect of the proceedings which the filing party has incurred or expects to incur, to enable the court to take account of the parties’ liabilities for costs when deciding what order (if any) to make for a financial remedy.
  • The costs estimate filed and served in accordance with (1), (2) and (3), and particulars of costs filed and served in accordance with (4), must include confirmation that (a) they have been served on each other party; and (b) in the case of a party who is legally represented, that they have been discussed with the party on whose behalf they are provided.
  • New rule 9.27(6) makes clear that a copy of the costs estimate, or particular of costs, must be brought to a hearing on appointment.
  • The amount of a costs estimate filed and served in accordance with rules 9.27(1), (2) or (3) and particulars of costs filed and served in accordance with paragraph (4), must be recorded in a recital to the order made at the hearing or appointment before which the estimate or particulars were filed or served.
  • Remember Practice Direction 9A makes provision for statements of truth to be included in costs estimates and particulars.
  • If a party fails to comply with rule 9.27(1), (2), (3) or (4), this fact must be recorded in a recital to the order made at the hearing or appointment before which the costs estimate or particulars of costs should have been filed and served; and, the court must direct that the relevant costs estimate or particulars of costs must be filed with the court and served on each other party within three days of the hearing or appointment or within such other time period as the court directs.
  • As the old rule 9.27 did, the new rule 9.27 directs readers to Rule 28.3.

In advance of each hearing, and after the hearing when drafting the order, it is therefore necessary to do and check the following:

  • Prepare your costs estimate or particulars of costs in good time.
  • Deal with the relevant period the costs estimates or particulars of costs needs to cover (eg: First Appointment to FDR etc).
  • Endorse the costs estimate or particulars of costs (or prepare a cover letter) with confirmation that it has been served on each other party and that is has been discussed with your client.
  • Sign the costs estimate (particulars of costs) and ensure there is a statement of truth attached.
  • Take a copy (and a spare!) to the hearing with you.
  • After the hearing, when drafting, make sure you record the amount of costs on the face of the order.

Watch this space as to whether there will be a new form. The minutes, which are linked above, suggest that a new form to replace the Form H and Form H1 will be produced.

New Rule 9.27A – Duty to make open proposals after a FDR appointment or where there has been no FDR appointment

This new rule inserts a new duty to make open proposals after an FDR appointment (or where there has been no FDR appointment).

So, after FDR if the court does not approve a consent order, or direct a further FDR, each party must file with the court and serve on each other party an open proposal for settlement. This is to be done by such date as the court directs, or, where no direction is given, within 21 days after the date of the FDR appointment.

Be aware of the other directions given at FDR. Has further factual evidence been ordered which is relevant to the formulation of an open offer? Has further disclosure been ordered which will impact upon the formulation of an offer? Has further or additional expert evidence ordered? If so, consider when that evidence will be filed and served and invite the court to timetable the making of offers in compliance with this rule accordingly.

If no FDR takes place, for example if the FDR is dispensed with, the new rule requires the open proposal by such date as the court direct, or if no direction is given, not less than 42 before the date fixed for final hearing.

There is no requirement that an open offer made in accordance with Rule 9.27A has to be without limit of time for acceptance. It could, for example, be a time limited open offer, later withdrawn and replaced with a further open offer. Also, do not forget about rule 9.28. This rule remains (albeit the rule heading will change to include the words ‘before a final hearing’). Thus there is still a duty upon the applicant to file and serve an open proposal to settle (setting out concise details, including the amounts involved) not less than 14 days before the final hearing, and for the respondent to file and serve, not more than seven days after service of the applicant’s open proposal, his or her own open proposal.

Rule 27.9 – Recording, transcripts and informal notes

Rule 27.9 (which dealt with official shorthand note of proceedings) is substituted with a new rule, which, in summary, provides:

  • All hearings will be tape recorded or digitally recorded, unless the court directs otherwise;
  • Unofficial recording equipment may not be used by any party or member of the public without the court’s permission. To do so would constitute contempt!
  • A party, the Queen’s Proctor and, where a declaration of parentage has been made under s.55A of the 1986 Act, the Registrar General, may require a transcript of the proceedings to be supplied to them, upon payment of the charges authorised by any scheme in force for the making of the recording of the transcript.
  • A person to whom the above does not apply, may be provided with a transcript of the recording of any hearing with permission of the court and upon making payment of the charges relating to the transcript.
  • At any hearing, the court may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of a note or other informal record of the proceedings made by another party.

Other changes

There are a number of other changes:

  • Rule 2.5 is amended to refer to a practice direction making provision in relation to justices’ legal advisers carrying out specified functions of the family court. Associated or consequential amendments to the FPR are also made.
  • Rules 12.4 and 14.4 are amended to clarify that in the proceedings in which those rules apply, a direction can be applied for from that court that notice of proceedings need not be given to a person with foreign parental responsibility.
  • New rule 12.42B is inserted to specify a procedure for the High Court to set aside its orders made under the inherent jurisdiction where no error of the court is alleged
  • New rule 12.52A is inserted to specify a procedure for the High Court to set aside orders for return or non-return of a child that it has made under the 1980 Hague Convention where no error of the court is alleged.
  • Rule 14.21 is amended to reflect the fact that the directions referred to in that rule can be sought not just from the High Court but also the family court. Rule 19.2 of the FPR is amended consequentially on this amendment.
  • Rule 25.5 is amended of the FPR to insert reference to the fact that a new practice direction may make provision regarding expert evidence in relation to toxicology testing.
  • A new Part 41 is inserted into the FPR, which makes provision for a practice direction to set out procedures to be followed in relation to cases proceeding by electronic means. Associated and consequential amendments are made by rules 6, 8, 9, 15, 19, 22 and 23.

Emily Ward

 

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