Richard Todd outlines some of the aspects of the ancillary relief pilot scheme which make it, in his view, less than perfect. Richard Todd is a barrister at 1 Mitre Court Buildings.
The ancillary relief pilot scheme is now embodied in the Family Proceedings Rules 1991 as rules 2.71 to 2.77. It is no longer a mere practice direction. It is in operation in 27 county courts and the principal registry, and it looks as if it will be adopted in the remaining divorce county courts in the near future.
It has the feel of a scheme which is here to stay. So has practice made the scheme perfect? Well, almost.
There are four things wrong with the scheme:
Since Evans v Evans (1990) the courts have become obsessive about restricting the ambit of disclosure. This mania finds expression in paragraph 5 rule 6 where only one questionnaire is allowed prior to what should be the final resolution of the case at the Final Dispute Resolution (FDR). (No general discovery at all is allowed before the first appointment). Indeed even the single questionnaire is often limited, as first appointment directions sometimes adopt the formula known as a Wilson Order, “the respondent shall answer the petitioner's questionnaire on or before [date] save with just and reasonable exceptions”. While this restriction on discovery is laudable in 95 per cent of cases, it prevents a proper FDR in the remaining 5 per cent of cases – the cases where one spouse is minded to thwart the court's inquiry and deny proper disclosure. That spouse answers the questionnaire to his own satisfaction (often leaving trails of suspicion). He (for it is normally he) then puts an offer. Wife at the FDR says she cannot respond yet because the husband's answers to the questionnaire raise more queries. Wham! the costs of counsel and solicitor attending an FDR are wasted. It would make much more sense to have left the Family Proceedings Rule 2.63 questionnaire procedure intact. Let us have questionnaires until the cows come home. Misbehaviour will be visited with costs sanctions. Rule 2.63 is tried and tested. It works. Leave it alone. We do not need the nannying restriction on disclosure brought in by paragraph 5 rule 6.
Am I the only person to think it is silly to divide questionnaires and requests for documents? I don't think so. It is a waste of ****ing time and money – as memorably referred to in Baker v Baker (1995) – to write the whole thing out again and then say “and provide documents evidencing the same”. Again, 2.63 should not be messed about with.
Schedules of issues, if done properly, are very helpful, but in the prevailing “sue the lawyers and let them be damned” climate, can lawyers be expected to risk reducing the ambit of their client's claims by these reductions/concessions? Increasingly, it seems that they cannot. One sees widely drawn schedules of issues, for example, “the wife's rehousing and income needs”. It will be only a matter of time before the schedule of issues reads “the matters referred to in section 25 of the Matrimonial Causes Act 1973”. In cases which demand it, there should simply be a direction for skeleton arguments. The present mish-mash of schedules of issues for all cases attempts everything but usually achieves nothing.
The form Es leave no scope to “tell the story”. These forms represent the beginning of the slippery slope which gave us the Child Support Agency; “punch in the numbers and let the adding machine dispense justice”. Computer courts will give us terminal justice. These forms should be done away with. Instead there should be a rule which clearly states all the matters which should be put in the affidavit. It could even prescribe in what order that information should be put, but it should not restrict the litigant to just that. Natural justice is all about being allowed to put one's case properly and fully. While lengthier affidavits may be a source of irritation to some district judges it will come as a great benefit to a lot of litigants. (It will also cut down on the need for longer openings by advocates.)
Well, perhaps if all I can come up with by way of criticism of the pilot scheme is the above, I suppose it cannot be such a bad scheme after all.