The Farquhar Committee and the Future of the Financial Remedies Court

Authors: Liam Kelly & Claire Athis Schofield

INTRODUCTION

23 March 2020 will be etched in the mind of generations. It was the day which brought unprecedented change to the way the world worked, not least the operation of the justice system and access to justice. Like many areas of law, the Financial Remedies Court [‘FRC’], was not prepared for the sudden and abrupt suspension of attended hearings, yet advances in technology quickly enabled the FRC to get back to work, albeit, at least to begin with, in a totally alien way for many. The use of remote hearings as a way of administering justice has now been the norm for over 20 months, and as the world begins to cautiously ‘get back to normal’, the question on the minds of all those practicing within the FRC is “what does the new normal look like?”

With that very question in mind, Mostyn J, National Lead for the FRC, invited HHJ Stuart Farquhar (Lead Judge of the Kent, Surrey & Sussex FRC) to chair a committee to consider what place, if any, remote hearings would continue to have in the FRC, in addition to considering whether existing procedures and processes can be improved.

The Farquhar Committee [‘the Committee’] as it has become known, published its reports in two parts on 20 October 2021. Firstly, “A Paper to consider the future of Remote Hearings in the FRC”[1] dated in May 2021 [‘Part 1’], and secondly, “A Paper to consider changes to the Practices and Procedures in the Financial Remedies Court”[2] dated September 2021 [‘Part 2’].

In coming to its conclusions and recommendations, the Committee analysed survey responses of 215 members of the Judiciary (112 DJs, 62 DDJs, 18 CJs, 16 Rs, and 7 HCJs), and 896 responses from legal professionals (453 Solicitors ,379 Barristers, 42 Legal Executives, and 19 Others), in addition to considering any impact on litigants-in-person and additional feedback from all Lead Judges within the FRC.

This article is aimed at providing a quick guide to the recommendations of the committee summarising the key points. However, this article should not be considered a substitution for reading the Reports which are detailed and provide much further insight and analysis to the conclusions and recommendations of the Committee.

PART 1: THE ROLE OF REMOTE HEARINGS IN A POST-PANDEMIC WORLD

(i) Remote Hearings

The report is unequivocally clear that the advantages of continuing with remote hearings within the FRC outweigh the disadvantages and as such, certain types of hearing should continue to be heard remotely.

Whilst the purpose of this article isn’t to critically analyse the qualitative responses provided within the report, it is evident the Committee has a clear understanding of the benefits and disadvantages of remote hearings from the diverse range of responses from the judiciary and legal professionals who engaged with the survey and provided narrative responses.[3] However, it should be noted, as indeed it is within the Committee’s report[4], that the participation of lay parties with the survey was poor, and instead the Committee relied upon responses from legal professionals to ascertain the views of their respective clients’, the majority of which[5] confirmed their clients’ experience of remote hearings was very positive or positive.

Having recommended the continuation of remote hearings, the question is, which hearings should be heard remotely? In short, the answer is most hearings at which no evidence is to be called can continue to be heard remotely. As always, there are exceptions to the rule and the Committee recommends FDRs, enforcement hearings where the liberty of the individual is at stake and appeals should remain as attended hearings. Hearings for Maintenance Pending Suit and LASPO applications should be attended hearings, as should all final hearings.

Attended Hearings:

MPS and LASPO applications
FDRs
Final Hearings
Appeals
Enforcement Hearings – liberty at risk

Remote Hearings:

First Appointments
Without Notice Applications
Interim Applications – no evidence
Expert Evidence
Overseas witnesses/parties
Pre-Trial Reviews
Enforcement Hearings – Liberty not at risk

The Committee considers the default position for each hearing should be as set out above. Should any party seek to vary the default position, the committee recommends a formal application should be made within 14 days of the Notice of Hearing, such application being determined by the Court on paper. As ever, each application will be considered on its individual merits, however narrative responses from both the Judiciary and legal professionals suggest those applications meritorious of an attended hearing may include:

Litigants-in-person or lay clients without the appropriate technology;
If parties appear from the same location;
If an interpreter is required; and/or
Litigants-in-person or lay clients have a disability which hinders their ability to attend remotely.

Whilst litigants-in-person or lay clients without the appropriate technology may be meritorious of an attended hearing, the Committee considers this issue can be overcome by the parties and their respective legal representative attending from the same location, it being considered that most legal representatives now have the appropriate technology to adequately participate in remote hearings. Whilst it does not make any firm recommendations, instead stating ‘This is a matter for the parties and their legal teams, if represented, to consider’[6], the Committee also considers attendance of the parties, and their legal team together would overcome delays in receiving instructions and assist in lay client participation with the proceedings.[7]

Throughout this period, practitioners have become familiar with a range of different technology, not least those platforms for remote hearings, from telephone to Zoom or Microsoft Teams, and latterly to CVP. Whilst the Committee considers telephone to be an option of last resort, somewhat surprisingly the Committee recommends Zoom as the best video platforming service, although noting the same is not currently adopted by HMCTS, a position which has been unchanged since MacDonald J’s fifth iteration of ‘The Remote Access Family Court’ in which he stated “it remains unlikely that funding will be made available to the judiciary to purchase operating licences for Zoom.”[8] It is the writers’ experience that although Zoom was used initially in the first Lockdown by individual Judges, for security reasons, Microsoft Teams is now the prevalent platform and has sufficient functionality to remain so.

(ii) E-Bundles

Whilst to many, Judiciary and legal professional alike, e-bundles were few and far between before the pandemic, it is now commonplace within the FRC. The FLBA amongst others went to great lengths from the outset of remote working to upskill all those working within the FRC and family law more generally. It is perhaps then no surprise that the Committee recommends that all hearings within the FRC will now require an e-bundle unless ordered otherwise. Further, the bundle shall also be required to be paginated, searchable and bookmarked in accordance with the Protocol. Of note, Haddon-Cave SPJ, McFarlane P, and Johnson J issued further ‘General guidance on electronic court bundles’[9] on 29 November 2021 which replaced the Protocol issued in May 2020.

However, quite how the recommendations within the Committee’s Report and the General guidance on electronic court bundles reconcile with PD27A remains to be seen. The matter is even more acute when one considers the Committee’s recommendation that “There must be more rigorous use of PD27A paragraph 12 which states that failure to comply may result in a Judge removing the case from the list or the making of adverse costs orders.” The writers consider this issue requires urgent consideration by the Family Procedure Rule Committee to avoid legal professionals, and litigants-in-person alike, become subject of wasted costs orders.

(iii) Litigants-in-person

Finally, it is worth brief mention of the Committee’s approach towards litigants-in-person. Whilst the Committee did not consider it appropriate to make any specific recommendations as to rules for litigants-in-person who represent themselves in remote hearings, the Committee, throughout the reporting process, appointed an ‘access to justice champion’ to ensure any vulnerabilities identified in respect of litigants-in-person were considered at each stage of the process.

PART 2: A SEA OF CHANGE – PRACTICES AND PROCEDURES IN THE FRC

In addition to those surveys conducted for Part 1 of the Committee’s report above, the authors of “A Paper to consider changes to the Practices and Procedures in the Financial Remedies Court”[10] also obtained statistics from HMCT’s Family Court Statistics Team, in addition to the results of a survey of FRC Judges in August 2021 to inform their recommendations for change.

In analysing the data, the Committee considered the data from London to be ‘flawed’ and as such excluded the same to give what the Committee considered a “more reliable” outlook. Further, the Committee analysed data from 2019 to provide a somewhat more accurate view of the FRC landscape, free from the impacts of the pandemic. The data is insightful and is therefore worthy of repeating in full:

There were 8,136 contested cases
Just under 30% of cases settled prior to FDR
Approximately 50% of all cases that reach FDR settle prior to a final hearing
The average length of proceedings to the FDR was 55 weeks
The average length of proceedings to final hearing was 84 weeks
There are significant regional difference with cases taking between 60 and 90 weeks on average to reach final hearing depending on which region was involved[11]

Reading the statistics, it is clear there were significant delays within the FRC in 2019. The writers would suggest it is inevitable the delays and backlog caused by the pandemic are likely to mean the time to disposal of such cases is significantly longer today.

Surveys conducted of FRC Judges conducted over a 2-week period in August 2021 provide limited, albeit insightful, information and can be shortly summarised. Of those Judges which responded to the survey, just under 25% of contested cases involved net asset of £250,000 or less, just under 50% involved net assets of £500,000 or less. Cases involving net assets over £1m made up 25% of all work, whilst 45% of all consent order applications involved assets less than £250,000.[12]

(i)Recommendations for change

Having analysed the data from all sources, the Committee have recommended the following changes to Procedure:

First Appointments should be listed for 1 hour with FDR’s being afforded 1.5 hours, the latter all being listed during the morning;
FRC’s should have a dedicated member of staff familiar with the digital processes for ensuring all documents are before the court, in addition to being able to provide listing dates;

All parties should be sent a neutral set of guidelines and principles upon the issue of Form A;

Form E should be amended to include cohabitation date, mortgage capacity and property particulars, whilst changing the words ‘orders sought’ to a more neutral choice of words;

Valuations as to the matrimonial home should be agreed or obtained in advance of the First Appointment;
The Statement of Issues is no longer required for a First Appointment, but a composite schedule of assets, a chronology and case summary should be prepared by the parties noting any areas of disagreement, albeit the Committee considers it is only a ‘minority view’ that this is likely to be logistically difficult and costly save for Final Hearings;

The number of pages for skeleton arguments and Section 25 statements should be limited – although it should be noted limits already exist within PD27A, it appears the suggestion is further limits should be applied;
Advocates meetings to take place 3 days in advance of a hearing to narrow issues and to agree a hearing template to include judicial reading time and to prepare and deliver judgment. Again, the Committee considers there is a ‘minority view’ these should only take place “when possible”;
Orders should be drafted in advance of each hearing and settled on the day. This appears to reflect the “President’s Memorandum: Drafting Orders”[13] issued on 10 November 2021;
ADR should be encouraged at all stages of the proceedings;
D81 Forms should be amended to assist judges in being able to approve consent orders. The Committee supports a proposed draft which would enable the Court to be clearer as to (i) capital and income resources of the parties, and (ii) the net effect of the consent order on the parties; and
The ability of Circuit Judges to prohibit Oral Hearings in applications to appeal that are considered to be totally without merit.[14]

(ii) Fast Track Procedure

Perhaps the most far-reaching proposal of this report is the creation of a Fast Track Procedure in cases of net assets of £250,000 or less to assist in alleviating the back log within the FRC, the relevance of August 2021’s FRC Judges survey now being abundantly clear. The Committee has considered the issues extensively, including proposed changes required to the FPR[15], and whilst this article provides a brief overview of the proposals, it cannot begin to supplement the detailed analysis contained within the report which should be essential reading for any FRC practitioner.

Those familiar with FRC proceedings will know the Family Procedural Rules 2010 [‘FPR’}, r9.9B, already provides for a ‘fast track’ procedure, however, as the Committee point out, the existing procedure only relates to a limited number of cases involving periodical payments, including those seeking variation, so long as a ‘substituted’ capital order is not sought by the applicant.

Most importantly, and before setting out the key proposals and timetables, it is important to state the intention of the new fast track procedure is to reduce the time to disposal and as such it is proposed the first hearing will now proceed as an FDR unless there is good reason not to. Of note, parties will be a liberty to apply to ‘transfer’ to the standard procedure if matters are sufficiently complex, but it is expected in cases of net assets of £250,000 or less, this is unlikely to be required.

The key proposals can be summarised as follows:

Fast-Track Application to be issued (Form A2 proposed). Upon issue, the Court shall list the first hearing in 16 weeks and a final hearing 26 weeks thereafter with an estimate of 1 day. [Week 1]
Forms E to be exchanged 4 weeks from the date of issue. [Week 4]
Parties shall agree property valuations and any liability as to Capital Gains Tax (‘CGT’) within 7 days of exchange of Forms E [Week 5]. In the event agreement cannot be reached and the appointment of a single joint expert [‘SJE’] is required, permission shall be granted by way of an automatic direction on issue, with letters of instruction to be agreed within 14 days of exchange of Forms E [Week 6]. Thereafter it is proposed any SJE reports should be available within 4 weeks of instruction [Week 10]. Questions to the expert should then be put 7 days following receipt of the reports [Week 11], with response from the expert 7 days thereafter [week 12].

Questionnaires to be exchanged 14 days after receipt of Form E [Week 6].

Replies to questionnaires to be provided within 4 weeks of receipt of the same [Week 10].
7 days after all expert evidence is received, the applicant shall make an open offer [Week 13], with the respondent’s to follow 7 days thereafter [Week 14.] In the event a party considers the financial landscape to be unclear, they should set out in writing, in advance of the hearing, the reasons as to why they feel unable to make an open offer at this stage
As noted above, the Statement of Issues is no longer required for the first hearing, but a composite schedule of assets, a chronology and case summary should be prepared by the parties noting any areas of disagreement and filed not less than 7 days in advance of the first hearing [Week 15].

First Hearing [Week 16] at which the Court may: (i) Record settlement (ii) Adjourn for a further FDR, or (iii) Adjourn to final hearing.

The Committee recommends a pilot scheme in the first instance to be set up in 3 different FRC areas for a period of 12 months to allow the efficacy of the proposals to be tested before any longer-term recommendations are put forward. However, the committee have considered a potential increase of the threshold to £500,000 should the pilot scheme be a success. The reasons are clear: should the roll out of the proposed fast track scheme be successful, the FRC would be able to substantially reduce its backlog and increase the time to disposal of up to 75% of all contested cases if the limited statistics provided by the August 2021 survey is reflective of the true picture of the work of the FRC.

CONCLUSION: WHAT HAPPENS NEXT?

The Farquhar Committee’s Reports have made extensive proposals as to the future functioning of the FRC and whilst many of the proposals are yet to be ratified by the Family Procedure Rule Committee or formally adopted by the President of the Family Division, recent regional guidance, not least from HHJ Hess (Deputy National Lead of the FRC and Lead Judge of London FRC) dated December 2021, appears to suggest there is an appetite for change in the FRC in accordance with the recommendations of the Committee.[16]

According to HHJ Hess’ recent publication, an announcement from the National FRC is expected shortly entitled “Statement on the Efficient Conduct of Financial Remedy Hearings in the Financial Remedies Court below High Court Judge Level” which will no doubt further adopt a number of the recommendations set out by the Committee.

[1] https://www.judiciary.uk/wp-co...

[2] https://www.judiciary.uk/wp-co...

[3] Ibid 1, Chapter 4 – Part B & Part C

[4] Ibid 1, Chapter 4 – Part D, para 4.12

[5] Ibid 1, Chapter 4 – Part D, para 4.13, [54.8%]

[6] Ibid 1 – Chapter 3, para 3.4

[7] Ibid 1 – Chapter 4, Part H, para 4.30

[8] https://www.judiciary.uk/wp-co..., para 5.4

[9] https://www.judiciary.uk/annou...

[10] Ibid 2.

[11] Ibid 2. Para 2.6

[12] Ibid 2. Para 2.8