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Mr Justice Holman

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It is rather unnerving to me that I was already a judge (since March 1995) when the work of the committee came to fruition in 1996, and I still am now, 25 years later, occupying the same private room in the RCJ and sitting in the same court room, court 49, now as then. Before that, I had spent 24 years doing “ancillary relief”, amongst much else, both in London and in many parts of the country. So I now have a very long perspective.

There were many voices calling for procedural reform in the early 1990’s, but it was Gerald Angel who really started the ball rolling. Appropriately, the meetings were all held in the old registry in Somerset House, of blessed memory. As Maggie Rae has said, in those days the first real consideration of negotiated settlement, and certainly the first judicial input into settlement, tended to be at, or immediately before, the final hearing. London practitioners of my generation will remember so well perching their papers on the large window cill half way down the stairs while trying to settle the case. I always tried to bag it first, for there were no tables in the corridors and the only alternative, really, was the floor!

It is difficult now to appreciate how radical the new rule was, with its prescribed first appointment, the Form E, and the FDR. It was Nicholas Mostyn who first suggested the FDR and drafted a succinct rule, substantially in its present form. This was revolutionary and has, I believe, been a very great success. It spawned, also, much of the over-riding objective now to be found in all rules of court, and it was the main spring-board from which all forms of out of court ADR have developed. In my view there are three keys to a successful FDR. First, the essential presence of both parties personally. Second, sufficient time being allowed for the scale and complexity of the case. And third, and most importantly, a genuine commitment by the lawyers to trying to promote settlement: without this, one is wasting one’s time. But there are few more satisfying judicial experiences than conducting a constructive FDR from which settlement does result.

Costs remain far too high and disproportionate at almost every level of case except, paradoxically, in the very highest scale of cases. If the parties are worth a billion, a million or two is in fact proportionate. But in all lesser cases they still need to be reined in, although I have no obvious solution, apart from confronting the parties very starkly at every hearing with how much they have each already spent, and how much more they are likely to spend. I frequently see some incredibly anguished, and incredulous, faces whenever I do so. There is a tendency to think about costs’ proportionality in proportion to the overall scale of the assets. That is wrong. It should be proportionality in proportion to the gap between the highest and lowest realistic outcomes.

One last anecdote. On the day that the travelling roadshow came to Bristol in late September 1996, I was in the midst of hearing a very contested ancillary relief case there. Nicholas Mostyn, then still a junior barrister but already punching above his weight, was appearing for the husband. We had to take a day out from the hearing while the roadshow came to town. Nicholas and Paul Coleridge QC presented it, and I, as FDLJ for the Western Circuit, chaired it. The case? White v White. Little did we foresee that that would be the start of an even greater revolution!

Gerald Angel

Really everything about the inception and development of the ancillary relief pilot scheme is already there in the pieces from Nicholas, Mathew and Maggie. My recollection is that in so many cases by the time an ancillary relief application came for hearing the build up of the parties' costs had reached a significant size, sometimes badly distorting the sensible resolution of the dispute. It was thought that an early, legally privileged, meeting with a District Judge might help. Hence the first appointment and the FDR. It seems to have helped.


Look back at the other articles in this series:

Sir Nicholas Mostyn

Sir Mathew Thorpe

Jane Simpson


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