Is going to court the worst option? Reflections on AS v CS

 

Director James Pirrie reflects on the case of AS v CS [2021] EWFC 34 and identifies the benefit of issuing court proceedings to create a structure for future negotiations and timetabling.  

Briefly “no, it isn’t the worst thing” …

More expansively “it depends what you mean by going to court” …

And beyond this “What is way worse is negotiating fruitlessly for a long time and only then deciding to go to court”.

But AS v CS now adds further encouragement for issuing your application in many cases.

But let’s go back a bit. Where spouses separate, almost always a court order dealing with finances will be needed:

• You can only share a pension if you have a court order providing for it;
• Even if you just want to agree that nothing needs to change, it is only a court that can actually terminate the rights to apply and make you safe from further future applications around capital and pensions and so on.

So ultimately most people managing things well will “go to court” in the sense of attending court by sending in bits of paper and asking for the approval of their agreement.

That agreement is generally best reached away from court by people genuinely seeking to make the best of the situation for the family. These win-win solutions are often found with professional support guiding the family around the pitfalls, and giving information about legal rights, choices and consequences of choice.  Mediation, collaborative practice or constructive solicitor-led negotiations can each provide the way ahead. But sadly there are other situations, where there is no such constructive engagement … or perhaps no engagement at all. Here the question is whether at a relatively early stage you should be reaching for your form A (the form that starts the whole process) to create structure, timetabling and impose progress to conclusion.

For many this is [wrongly in our view] seen as sending the “I’m abandoning talking” message…

… which is why they hold back

… and back

…  and then six months later they finally discover they really are at impasse and need something to propel things forward, but are already exhausted and have high costs from the ongoing attempts at dialogue.

We will often recommend a different approach. This is because the court process takes place in three stages:

• The first appointment (which is the case-management hearing, when the court will determine issues of disclosure, valuation and so on and also timetable the case);
• The FDR (or financial dispute resolution hearing) when the judge court will seek to broker a deal; and
• The Final Hearing when the judge hears evidence and, if the parties have not agreed beforehand imposes an outcome.

And note:

• Deals can be agreed at any point and are usually then just sent to court on paper for approval.
• The first appointment can be combined with [ie converted into] the FDR with enough notice.
• The first appointment can also be abandoned entirely if there is an agreement as to the directions that are wanted and the court agrees.

Note too, the likely timetable:

• If you issue your application it will be 12-16 weeks before the court gives you a date … realistically it is longer:
  • It takes time to get your application prepared and sometimes a lot of time for the court to process it.
  • The court is supposed to give you a date within 16 weeks but often it will be pushed out further.
  • A routine example from our current caseload is this:  1. Decision to issue early October.  2. Papers sent for issue 13^th 3. First appointment 24^th March (by my calculations an overall timeframe of almost 26 weeks).
• There is a lot of variation about the timetabling of the FDR and Final Hearing stages, which will depend on how backed-up is the court, the case complexity (and thus length of hearing) and also availability of the barristers involved, but routinely it might be:
  • FDR after three to six months
  • Final Hearing say six to nine months (or longer) after that.

So why issue?

• Whether the timeframe to the first appointment is 16 weeks or 26 weeks
  • It is plenty of time in most cases to manage disclosure (which should be underway already) and then have the dialogue which could then lead to the deal and the draft order.  This would then be sent to court for approval (as is going to be needed anyway) and there are no additional costs.
  • In the cases where you are negotiating but have not reached a deal, if there is co-operation and anticipation, you can convert your first appointment to FDR, which is a key moment when so many cases settle.  So here you are fast-forwarding your way through the process and saving costs.  If you do need a final hearing, it is likely to come about more cheaply and 4-6 months earlier because of your actions.
  • If you are more stuck than this, then you probably need the first appointment to address the timetabling and case-management issues anyway and it is probably better to have the court date to provide a timeframe so that everyone gets on with it rather than continuing to be in a state of unresolved disagreement.
• In short the court application pushes everyone forward – either to agree or at least to agree that they are not agreed (and then to do something about it).
• Where the alternative is expensive stasis (no progress, but climbing costs as everyone marches on the spot), there is a real risk of realising that poor choices have been made with the 20:20 vision of hindsight and when the opportunities to get back on track may be limited. You may well be cornered into reaching a sub-optimal agreement simply because you tried to do the right thing.

We indicated above that Mostyn J in AS v CS provides an additional reason to issue. What he has focused upon is another aspect of family law, “the private FDR”.  In fact this was another creation of Family Law in Partnership: instead of waiting for the court to timetable the FDR, you “buy a ‘judge’ ” for the day. Here a senior barrister or retired judge will make themselves available to provide the services of the court FDR, but usually with:

• More hands-on guidance
• Better preparation (and in consequence:)
• A higher success rate

As Mostyn J puts it in AS v CS “Private FDRs are to be strongly encouraged. They seem to have a higher success rate than in-court FDRs. This may be a result of more time being available to the judge both for preparation and in the hearing itself. Private FDRs take a lot of pressure off the court system which is highly beleaguered at the present time. They free up judicial resources to hear cases that must be heard in court.”

AS v CS concerned a case where the wife said that she was not ready and would not attend the private FDR. The husband thought that he had no alternative but to go along with that: “No” said Mostyn J and if we might summarise in terms what he went on to say:

• “If this was at court you could not decide just not to turn up to the FDR”
• “So it is if you have court proceedings and pick a private FDR: you must still attend that private FDR. If you think you can’t make use of this crucial step then make an application to the court and the court will consider whether there is justification for releasing you (usually because the evidence is not ready – but even then may be not).”

So the additional reason we now have for issuing proceedings is that you then have a context of timetabling: no shows at private FDRs becomes unlikely. Your case is propelled forward to conclusion and, all being well, there is focus and a lower cost conclusion which must remain key objectives in the mix.

A further alternative to issuing, where the parties agree, is arbitration: Here the arbitrator has control of progress – but what is similar to the court process is that there is regulation rather than a risk of no-show or non-engagement just because people think they can do so.  If you want to avoid that situation then you need either to agree arbitration and otherwise get your application issued – and probably sooner rather than later.