Financial Remedies Practice (2023-2024)

Preface to the Twelfth (2023–24) Edition

In the run up to the publication of this edition and indeed the penning of this Preface, it has become increasingly easy to forget that only 2 years ago we were emerging from an unprecedented period of restrictions on our civil liberties imposed in the course of the Covid-19 pandemic.

Fortunately, the hearing before the Committee of Privileges of the House of Commons has acted as a timely reminder. As with every crisis, including those with tragic outcomes for so many, the pandemic accelerated progress across vast swathes of fields of endeavour. Family law in general, and financial remedies practice in particular, have benefited from the jump-start of digital projects which would otherwise probably have taken years, if not decades, to have been embraced by the courts and practitioners alike.

It is understandable, if regrettable, that the mostly positive experience of necessarily remote hearings during the pandemic has been largely discarded in favour of a return to business-as-usual, meaning often unnecessary travel to, waiting time at, and uncomfortable (or absent) facilities in ever-more decrepit court buildings.

Like all of its predecessors, this refreshed volume comprehensively reviews and summarises the many and various adjustments and
amendments to the procedure for financial remedy cases.

Despite the endeavours of the authors and editors, ever aware of the physical limitations of the binding process, to limit the heft of the volume, the inexorable deluge of judgments (but, at least so far as this volume is concerned, not so much from the legislature or Rule Committee – with a
paltry three Family Procedure (Amendment) Rules 2022/2023) has resulted in the delivery of a work distinctly different from its predecessor. Of this
Horace would surely have said parturient montes, nascetur magnificus puer. [1]

It is not possible in this deliberately emaciated Preface to do justice to the endeavours behind the extensively rewritten text, just a few highlights of
which are summarised below.

The Commentaries on Parts 20 and 33 have been extensively revised to reflect what has been described as the unleashing of the court’s powers in
relation to injunctions by the Privy Council in Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24 as explained by the Court of Appeal in Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312 and Bacci & Ors v Green [2022] EWCA Civ 1393.

The Commentary on Part 3A has been updated to summarise the rapidly developing understanding of the importance of accommodations, in the
form of participation directions, being made for vulnerable witnesses and participants in proceedings, including the bringing into force of s 65 of the Domestic Abuse Act 2021 prohibiting the cross-examination of victims of domestic abuse by their abuser, and the inception of the scheme of ‘qualified legal representatives’ being appointed to undertake conduct of any such cross-examination.

The ever-accelerating move to a digital family court results in extensive additional Commentaries on Parts 5 and 36N as practitioners wrestle with
the delights of ‘the portal’, which while for the moment is merely a ‘pilot’, is undoubtedly a portent of what is to come to us all eventually. The new
system is mandatory for all cases in which the applicant is legally represented. Fittingly, the ‘how to’ guidance is also digital – hello YouTube!

Perhaps the hottest topic, although hardly a novel one, is the enduring differences of approach between the judges at the pinnacle of the financial
remedies tree, in relation to the transparency or opacity of financial remedy hearings. The ‘reporting pilot’ schemes in Leeds, Cardiff and Carlisle,
permitting extensive, albeit anonymous, media coverage of family proceedings certainly indicates the direction of travel, although there remains resistance amongst parties, legal advisers and judges alike at all levels.

The updated Commentary on Part 27 embraces the developments in this tussle including summaries of the decisions in Sunderland City Council v
Macpherson [2023] EWCOP 3 and Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam). It is, however, in the nature of the difference of approach that there are fewer public pronouncements from those members of the judiciary who are less enthusiastic about the transparency project.

The revised Commentary on Part 27 also includes updates in relation to judicial recusal, the return to ‘in court’ hearings and the disapprobation of
‘forensic cheating’ in the preparation of page-limited documents for hearings.

The ninth (2020–21) edition of this work included a tribute to our late colleague, co-author and friend Sir Peter Singer. We could not end this
Preface without mention of the forthcoming retirement (from the bench, but not from this publication) of our lead contributor and author, Mr
Justice Mostyn, who will step down in the summer of 2023. Since his appointment in April 2010 he has illuminated the law reports with his
inciteful, wise and often revolutionary vision of family law in general and the law of financial remedies in particular. Future editions of this work,
albeit with his authorial input will be all the poorer for the absence of his future judicial outpourings. Although his name appears below this Preface, he has had no part in this final paragraph.

The law is generally stated as at 31 December 2022

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