Dictionary of Financial Remedies (2023)

Add-Backs
Adjournment of Capital Claims
Agreements
Appeals
Arbitration
Bankruptcy
Bonuses
Bundles
Chattels
Child Maintenance
Child Support
Children Act 1989 Schedule 1 Applications
Civil Partnerships
Civil Restraint Orders
Clean Breaks and Term Maintenance
Cohabitation of Recipient of Spousal Maintenance
Committal Applications and Judgment Summonses
Companies
Compensation Principle
Conduct
Consent Orders
Contingent Assets and Liabilities
Costs
Criminal Confiscation and Restraint Orders
Debts and Loans
Delay
Disclosure from Third Parties
Disclosure
Divorce Orders
Domestic Abuse
Duration of the Marriage
Duxbury Capitalisation
Efficient Conduct
Enforcement
Executory Orders
Experts
Farms and Country Estates
FDRs
Financial Remedies Court (FRC)
First Appointments
Foreign Assets
Freezing Injunctions
Hadkinson Orders
Housing Need
Imerman and Hildebrand
Impaired Life Expectancy
Inflation
Inheritance Act Applications
Interest
Interim Relief
International Enforcement
Joinder of Third Parties
Jurisdiction
Legal Services Payment Orders
Life Expectancy
Maintenance Pending Suit
Matrimonial and Non-Matrimonial Property
Mesher Orders and Deferred Charges
Needs
Overseas Divorce and the 1984 Act
Pensions on Divorce
Personal Injury Awards
Privilege
Publicity and Confidentiality
Release from Undertakings
Remote Hearings
Sale of Property
Setting Aside Orders (Including Barder Applications)
Setting Aside Transactions
Sharing Principle
Special Contribution
Spousal Maintenance (Quantum)
Standard Family Orders
State Pensions
Stockpiling Orders
Striking Out Applications
Tax
TLATA Claims
Trusts
Valuations
Variation Applications
Variation of Settlements

I am gratified that notwithstanding my relinquishment of the leadership of the FRC; my replacement as judge in charge of standard orders; and the expiration of my term of office on the Family Procedure Rule Committee (all in favour of the admirable Peel J), I have been asked once again (surely for the last time) to write the foreword for this outstanding book.

As before, I have amused myself by getting the computer to tell me how many times I am mentioned. In 2019 it was 94 times; in 2020 it was 97; in 2021 it was 111; in 2022 it was 135; and this year I am very pleased to record that the figure has risen to 151. Again, I have further amused myself by having the computer tell me how my competitors have fared this year. The results are even more pleasing than last year: Moylan LJ – 29; Roberts J – 33; Moor J – 31; Baker LJ – 24; Peel J – 18; Cohen J – 17; HHJ Edward Hess – 13; Francis J – 8.

The customary Boolean search of Mostyn AND (criticised OR overturned OR reversed OR set-aside OR wrong OR taken leave of his senses) with a proximity filter of ‘on the same page’ returned a positive result on 8 pages although (perhaps surprisingly) only two entries amounted to an actual criticism of a judgment of mine (NLW v ARC [2012] EWHC 55 (Fam) as to the appellate standard – a battle long lost by me; and Ipekçi v McConnell [2019] EWFC 19 as to the power to award an indemnity against any future child support calculation).

I had thought it impossible that further categories could have been imagined let alone included and populated, yet this edition includes three new entries, namely Adjournment of Capital Claims, Debts and Loans and Domestic Abuse each of which has been succinctly and relevantly written up. I was personally very happy that in the first of these the editors decided not to mention the decision of Villiers v Villiers [2022] EWCA Civ 772 (where the reasoning of the majority to adjourn the wife’s lump sum claim was demolished by the dissenting judgment of Arnold LJ).

On receiving the proofs I rushed to read the entry for Publicity and Confidentiality in the light of the throng of decisions (mostly by me) and commentaries (mostly by Sir James Munby) since the last edition. The entry begins with the statement: ‘This is an area in which practice and procedure in financial remedies cases are in an uncertain state of flux’, which nicely understates the controversies surrounding the subject. The entry then fairly sets out what is describes as ‘the established orthodox approach’. ‘Orthodox’ means ‘traditional’ or ‘conventional’, which is a fair way of describing the present set-up. However, it also means ‘approved’ or ‘correct’, which I would strongly dispute. My views have been fairly summarised in the section of the entry entitled ‘The assault on the orthodox approach’ (I gently quibble with the innuendo of the word ‘assault’). I have sought to point out that the imposition of general secrecy on FR proceedings by the obiter dicta in Clibbery v Allan, and on FR judgments by the standard rubric, is unlawful. Such secrecy is not authorised by section 12 Administration of Justice Act 1960 (unlike children proceedings) and the court has no inherent power to impose general secrecy, as the House of Lords held 110 years ago in Scott v Scott. Secrecy can only be imposed in the individual case where the facts demand it.

The entry states that: ‘Further, there is a view that the implied undertaking of confidentiality does not bind the press, although this view was rejected in both Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) and DL v SL [2015] EWHC 2621 (Fam)’. The second of the cited authorities is one of my own, which I have publicly disowned. Moreover, the ‘view’ referred to was that of Lord Diplock and Lord Roskill in Harman v The Home Office!

I agree with the editors that it is a pity that we do not yet know the result of the deliberations of the FRC TIG subgroup. If they recommend generalised anonymisation it will be interesting to see how they they consider it can lawfully be done in the absence of primary legislation. #justsaying

On 31 January 2023 use of the contested financial remedy cases online system became mandatory for almost all types of financial remedy applications. For such applications the online scheme will not apply only where the applicant acts in person (irrespective of whether the respondent is represented or not). Otherwise it is mandatory and the obligation extends to counsel. This will represent a sea change in working practices for numerous practitioners. Many temporary changes to the rules have been made. Yet apart from a tiny reference made in passing in the Financial Remedies Court entry the Dictionary of Financial Remedies is silent on this topic, which is regrettable as the HMRC guide, while informative, is insufficient. There is a dearth of information on the use of the system and the Dictionary may have missed a trick in not covering the new scheme in more detail.

These controversies and quibbles aside, the book maintains its extraordinarily high standards. It is incredible how much substantive and procedural law it crams into a mere 120 pages.

I have said before and I say again: you need to have this in your legal library as the judge hearing your next case will almost certainly have it on his or her desk.

The Hon. Mr Justice Mostyn | January 2023

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