11.1 Introduction

Most ancillary relief claims are determined by district judges and deputy district judges. What are commonly called 'big money' cases are usually, but not always, commenced in London in the Principal Registry of the Family Division (PRFD). Really big money cases and others where there are complicated issues, for example an international dimension relevant to tax, enforcement or trusts, will be tried by judges of the Family Division.

This does not mean that a claim for ancillary relief will not crop up in the list of a circuit judge or recorder, perhaps because an issue about children is to be determined first.

This chapter is intended primarily to be of assistance to those who rarely have to embark in this territory, but it is hoped that it may be of use to more regular hands, particularly those who are grappling for the first time with the recent changes of procedure.

11.2 The tools of the trade

Forewarned is forearmed. It is always worth checking what is in store for the next day with the listing officer whether you are a part-timer due to come in, or a full-timer changing courts or returning after a break.

In some county courts you may find it difficult to locate Rayden or the Red Book, the most widely available practitioner's textbooks. Everyone has their personal favourite and the sound advice to any part-timer who possesses one of these is to bring your own. In addition there are a number of extremely useful more specialised texts to be found in the libraries of the larger court centres and of chambers or firms who specialise in the area.

The bare essentials are an up-to date copy of the Family Proceedings Rules 1991, best found in the publications who have loose-leaf updates, such as Rayden, and a copy of At a Glance, the paperback published by the Family Law Bar Association. This contains a surprising variety of useful data. You will find tax rates, benefit rates, examples of regional average earnings in various fields etc., a list of most leading cases topic by topic, and, perhaps most useful of all, the parts of the Matrimonial Causes Acts 1973 (as amended) which guide you through the structured decision making process for determining these applications.

11.3 The new rules for ancillary relief.

With effect from 5 June 2000, all applications for ancillary relief are subject to the same, new, procedure. It is a refined structure derived from the 'pilot scheme' which applied to about one third of courts from 1996. All applications go through three stages, unless otherwise directed by the court. The first stage is strictly timetabled by the rules. It is the intention that the other stages should also be timetabled and judge managed rather than party driven. The new structure is set out in rules 2.61A to 2.61F, and 2.69 to 2.69F of the Family Proceedings Rules as amended by SI 1999 No 3491.

The principal aims of the new procedure are to promote earlier resolution of ancillary relief claims, whether by agreement or determination by the court, and to ensure that the process is case managed in such a way as to define the issues at each stage, and save costs. The rules are underpinned by a statement of over-riding objective (rule 2.51B) and a pre-action protocol. As in all other litigation proportionality is the watchword.

At every stage the court must be presented at the start of the hearing with a statement of costs from each party, setting out the costs incurred so far, and how much has been paid on account (rule 2.61F). The role of the judge at every stage is pivotal. Accordingly it is essential that he or she has had a chance to read the key material in advance at every stage. This cannot be done unless the parties comply with the requirements of the rules and timetable set by the court, and the court staff are sufficiently on top of their work to ensure files are up to date and available to the judge in time for him or her to read before the day's list starts.

11.4 The first appointment:

In, or better on top of, the file you should find each party's Form E. This is a comprehensive declaration of means in question and answer form which should have attached standard confirmatory documents, such as recent bank statements, pay slips, the latest P60, mortgage and pension statements and the like. It also contains a brief summary of each party's case. They should have been lodged 35 days ago. It is worth checking that this was done on time. 14 days ago each should have lodged a statement of issues, a chronology and a request for further information, if sought. Lastly, there should be two forms G indicating that the parties are or are not ready to proceed straight to the FDR stage, that is to negotiate with a view to settling on the first appointment. This information should give you a good overall impression of the state of play.

Upon issue an application is given a first appointment before the court within 12 and 16 weeks ahead. The notice of that appointment makes clear the deadlines for the Forms E and pre-hearing documents. The notice of the first appointment should be served by the court within four days of issue.

It follows that there is no excuse for failure to comply, even for those who act in person. Sadly you will probably find that compliance is not always evident, and the excuses will be imaginative. Remember the principles set out above, and do not hesitate to be robust, especially about costs.

The first decision to be made will be whether the parties should use the appointment as an FDR. The revised Form E is intended to promote early FDRs in straightforward cases, as documents confirming the information given will have been attached. It is for you to decide, not the parties. The forms G and the reasons given for willingness/inability to proceed are but to be taken into account, (rule 2.61(f)(iii)). Most couples cannot afford expensive and protracted litigation, many can ill afford any, if the resources available are clear the chances are that they will be barely adequate to meet the basic needs of the divided family. In those circumstances the range of possible solutions is small and the priorities clear. Such families cannot afford the extra expense of even one further trip to court. It is your duty to move into FDR mode on these occasions, notwithstanding reluctance on the advocates' part.

If there is good reason to decline to move straight into an FDR the first appointment must be used constructively. The chronologies and statements of issues, if well drafted, should point you in the right direction. Three tasks are yours. First you will decide the extent to which each party shall answer the questions and produce the documents requested of and by the other. Second you will decide whether, exceptionally, there should not be an FDR. Third you will timetable the application to the next stage.

11.5 The request information

This should have been drafted by reference to the issues (rule 2.61B(7)(c)). It follows that those which appear to have been prepared by pressing macro buttons on a word processor are to be regarded sceptically. Requests should be allowed only if the information, if given, will help resolve relevant issues. The onus on the advocates is to satisfy you of the relevance and proportionality of a request.

11.6 Should there be an FDR?

The answer is yes, save in exceptional circumstances. Of course no definition can be ventured of exceptional but a few examples may serve to guide you. If the first appointment has been used as an FDR and a settlement has not been achieved there may be little point in another attempt. If the respondent to the application has not taken part in the proceedings or has failed to co-operate to such an extent that you feel that to an impose an FDR before the court has to determine the application will simply add to the costs, then a pragmatic view may be to dispense with the FDR stage. If the beef is non-disclosure or misleading disclosure, on the other hand, FDRs turn out to be successful in a surprising proportion of cases, as a party may make an offer to settle sufficiently attractive for the other to accept rather than continue the dispute, with all the risks that that would entail.

11.7 Timetabling

Allow a realistic time for information to be given if you direct it. Ensure that you direct how the value of any property is to be agreed or ascertained. A joint valuation is the most economical course, and a market appraisal is usually quite sufficient. Even in complex and high value cases the use of expensive experts, such as forensic accountants, independent financial advisers or tax consultants should not lightly be sanctioned. Allow a period after the exchange of information and values have been ascertained for the parties to make offers to settle in advance of the FDR. Your local court will have usual practices. Follow them. At the PRFD it is usually directed that the parties attend at least one hour in advance of the FDR to negotiate and clarify issues. This allows us to get on with other hearings whilst they do so. A small point; if the complexities are such that you would list the final hearing before a High Court judge the ancillary relief application will have to be transferred to the High Court. Consider whether this should be done at this stage so that a judge may conduct the FDR. On your circuit the Family Division liaison judge or the Designated Family Judge for your area may well have practical guidelines, do ask.

11.8 The Financial Dispute Resolution Appointment (FDR): rule 2.61E

Seven days before the appointment the applicant will have filed details of all offers to settle, including without prejudice offers (rule 2.61E(3)). This will usually be in the form of a bundle of correspondence. There is no obligation upon the parties to file responses to questionnaires or valuations. If they are on the file you will find it of little assistance to struggle with the reams of paper involved. Good advocates (nowadays most) will prepare and hand in on the day their analysis of what the case is all about on three or so pages of A4, incorporating a brief chronology, a revised statement of issues, schedules of income and assets and, in tabular form, a comparison of the parties' respective stances. With this and the forms E you should have a pretty good grip on the likely issues and an idea about the range of outcomes.

The object of the FDR is for the parties to use their best endeavours to reach agreement upon the matters in issues between them. How best can you help? Do not hesitate to make your view clear if the stance of one side or another is obviously unrealistic, their advisers have already told them (though they can't tell you that), but many will not accept sound advice unless it is confirmed authoritatively, so now is the chance. Remind the parties of the costs they are running up, and of how much more will be spent if the matter is not resolved today. If the difference between them is not great, it is right to remind them that the costs expended resolving the difference may exceed the amount in issue.

You may be asked to give an indication of what you would do, or what they might expect the court to decide. Do not duck this responsibility. Be careful, however, to make it clear that your view is based upon what you have before you but that after a full hearing, when all relevant issues have been determined, the result may be different.

If the parties come to an agreement it may not be practicable for the full order to be drawn up then and there. By this stage it can be quite late in the day and an important twiddly bit might slip everybody's mind. Moreover you may have a home to go to. Do not let the parties out of your clutches, however, until they have handed in a signed, agreed, and dated list of heads of agreement which all agree will pass the Xydias [Xydias v Xydias [1999] 1 FLR 683] test; and you have fixed a date before which the final order is to be before you for approval. Sadly it is not unknown for one side or the other to have second thoughts after an FDR and be thoroughly awkward about agreeing the final text, or worse still seek to renege upon the agreement reached. The risk of this happening, and the consequent running up of further costs, will be reduced by your insisting on clear unambiguous heads of agreement.

If the parties are unable to agree you must give directions for the further conduct of the application. It is usually best at this stage to timetable to the final hearing.

11.9 Preparation for a final hearing

Directions for a final hearing are often given little thought by exhausted advocates and parties but you will bear in mind the helpful guidance given by Wilson J in W v W [2000] Fam Law 473. The FDR has been privileged and you are disqualified from further involvement in the case, but spare a thought for him or her who will have to try the application.

The Form E gives, quite deliberately, little opportunity to the parties to set out their case about how the court should exercise its discretion in regard to such matters as conduct or contribution. In most cases the former is irrelevant and the latter obvious.

If settlement has not been achieved by this stage it is more likely than not that the parties disagree strongly about either factual matters or the weight which should be given to some factor or factors. It will be helpful to the judge hearing the application if each party has filed and served a concise narrative affidavit/sworn statement in support of their case, and more so if the direction for evidence is specific about the areas to be covered. You are aware of the key issues; it will help your successor if you define them, and direct that the affidavit/sworn statement stand as the deponent's evidence in chief. It is also helpful to provide for updating of valuations and of the basic information in the Forms E. Make the effort also to deal with the appropriateness of other forms of expert evidence in order to minimise the chance of further, costs-gobbling, interlocutory applications. The President's Direction (Ancillary Relief Procedure) [2000] 2 FCR 216, of 25 May 2000, provides that where expert evidence is required the parties should if possible agree on a single joint expert, but where they cannot the court should consider the appointment of a single joint expert under CPR Part 35.

11.10 The final hearing

Unless the time estimate is less than a half-day there will, two days before the hearing, be filed a bundle for your use in accordance with the President's Direction of 10 March 2000. It will contain the parties' respective open proposals which will have been filed by the applicant 14 days before the hearing and the respondent seven days later (rule 2.69E). You will be able to see from your reading what the issues are, and how far apart the protagonists are. The successive statements of costs will indicate how much has already been spent.

If narrative affidavits have been well drafted and the bundle is well put together, (and you have had time to read it), there may be little purpose in a long and formal opening. If that's your view say so, but be flexible, the advocates at this stage may not have been with the case throughout, and it may be desirable to flag up straight away a change of tack or circumstances.

They ask for more time . . . Although it may be thought unlikely that an application which has been through the mill thus far will settle at the door of the court some do. If the advocates are able to tell you that time will be used constructively and the overall time estimate is not in jeopardy you may well be prepared to let them negotiate, but be wary of those who have only arrived at court a few minutes before kick off, or who wave around documents not disclosed before today, or give other signs of being time wasters, don't let them get the impression that the purposive case management to date is to be derailed. Be wary too of those who ask you to 'give an indication' of how you see a certain issue, or the likely outcome.

At the end of the hearing it is for you to decide; and however short your judgment it must make clear what findings of fact and reasons have led you to make your decision. The ideal judgment will lead a later reader to appreciate what the case was about and to understand and agree with your decision.

Such a judgment is not easy to deliver at the end of a long day, yet reserving judgment makes the task harder, not only will you agonise more, and perhaps lose sight of the strong impressions you formed during the hearing, but the standard expected of you will be higher. Resist.

Far better to start considering what you need to put in the judgment from the time you first read the bundle. Using a template, perhaps one adapted from paragraph 12.2, and the chronology prepared by the advocates to ensure you note the important details. As the evidence unfolds annotate, correcting or commenting on that material in the light of what you have heard.

When listening to submissions, if an advocate has not addressed something which is exercising you, whether a factual matter or a possible inference or option, ask him or her to deal with it.

Do not feel that you should not adjourn to think and to jot down notes for your judgment, to ensure that you cover the material you consider important. A short time for reflection will not be seen as a sign of weakness, rather as an indication that you are taking your task seriously. When giving judgment it is not necessary to drone through all the section 25 checklist areas, provided that it is clear that you bore them in mind and paid more than lip service.

11.11 Costs

The CPR applies to family proceedings insofar as costs are concerned and the ancillary relief rules contain further specific guidelines about the award of costs and basis of award (rules 2.69A-E). Summary assessments pursuant to Part 44 CPR may be a salutary lesson to those who fail to comply with timetables and directions, and may be made notwithstanding that a schedule of costs has not been served 24 hours in advance of the hearing, Macdonald v Taree Holdings Ltd The Times [2000] All ER (D) 2204, Neuberger J provided the procedure overall is not unfair. Do not forget that, sadly, it is not possible to make a summary assessment when the receiving party is publicly funded.

11.12 Pensions

Pension 'attachment' (formerly 'earmarking') is only available in respect of petitions commenced after 1 July 1996 and 'sharing' only in proceedings for divorce or nullity (but not judicial separation) commenced after 1 December 2000. There are procedural requirements for notice to pension providers in each case, as might be expected, but note that they differ. Beware making or approving any order involving pension provision without seeking assurance that all procedural requirements have been complied with! (See, in particular, FPR, r 2.70 and Pensions on Divorce etc (Provision of Information) Regulations 2000 (SI 2000/1048)

11.13 Third party interests

If a third party has or may have an interest in any property the subject of the application, consideration must be given at the earliest stage to service of the third party and to giving the third party the opportunity to intervene to protect that interest.

11.14 Insolvency

If one of the parties has been adjudicated bankrupt, all his or her property will have been vested in the trustee. Your powers to make orders will be limited to periodical payments and in exceptional circumstances lump sum orders: see Hallyer v Hallyer [1996] 2 FLR 579. If a party has entered into an IVA the decision of the court may affect that party's capacity to honour the terms (Re Bradley-Hale [1995] 2 FLR 838; Re A Debtor, JP v A Debtor [1999] 1 FLR 926). Insist that the court is given full details so that the orders made will be workable.

11.15 Illegality

Not infrequently does it emerge during ancillary relief proceedings that one party is accusing the other of being less than frank with the Inland Revenue, the Benefits Agency or another such public body. Lengthy guidance for the judiciary about our duty to bring apparent illegality to the attention of the authorities is set out in a judgement of Charles J in A v A, B v B [2000] 1 FCR 577.

11.16 Child Support

The jurisdiction to order periodical payments or children is restricted by the Child Support Act 1991, and will be more closely so when the new structure comes into operation. Presently, where the parent with whom the child lives and the paying parent are both resident in the UK the court may not make an order for periodical payments in respect of the child except by consent, or to provide for the child's needs by reason of disability for education. If the application for ancillary relief is contested the parties may yet agree the figure for child maintenance, whether in advance of the hearing or after you have made your overall judgement. Some ask that you indicate the award you would have made had you jurisdiction to do so, and base an agreement upon that, such a course is not objectionable. If a figure is agreed without reference to you, you have jurisdiction to make the order in those terms, but it is submitted that the court's approval should not be given to agreements which are not consistent with the criteria set out in sections 25 and 25A.