Looking back at the Ancillary Relief Procedural Scheme | Part 5 - Roger Bird

ROGER BIRD

Then: chair of the Family law sub-committee of the District Judges association, and later President of the Association of District Judges

now: Retired

I first heard of the Ancillary Relief Working Party in 1993 when, I was the chair of the Family Law sub-committee of the District Judges Association and heard a rumour that a group based in Somerset House was discussing reform of ancillary relief procedure. It seemed to me that, as district judges dealt with the overwhelming majority of such cases, we should be represented on this group and I rang Gerald Angel to discuss this. Gerald was initially somewhat reticent but eventually agreed to speak to Mathew Thorpe who immediately agreed that I should attend.

In our early meetings I explained that at Bristol my colleague John Frenkel and I had already devised a scheme to cut cost and delay and that this had been running successfully for some time. We had been impelled to do this by frustration with the existing system, which resulted too often in inadequate evidence and aborted hearings; we had been particularly incensed by so called ‘affidavits of means’ which rehearsed all the marital grievances but were silent on financial detail. Many cases reached a final hearing without any review or approval of time estimates by the court, and unnecessary costs were incurred.

We took advantage of a rule in the then FPR which allowed us to give directions at any time. We therefore directed in all cases that a first appointment would be fixed when an application was issued and it would be assumed that affidavits would be filed by the first appointment. At that appointment, the district judge assessed the kind of case it was and the principal issues and then, where appropriate, expressed an opinion as to the likely eventual result, concentrating mainly on eliminating unrealistic expectations. If the case proceeded to final hearing further directions were given.

This scheme had proved very popular with local solicitors and the bar and had had the effect of managing court time more effectively. We estimated that about a third of all cases settled at the first hearing and a substantial number settled shortly thereafter. One issue was whether a judge who had presided over the first hearing should then conduct a final hearing, particularly when he or she had expressed firm views about the outcome. Our practice was always to invite views on this and normally for the judge to hand over to someone else; surprisingly, in many cases both sides asked for the same judge to continue since at least by then they knew what the case was about.

Not all our Bristol colleagues were enthusiastic but they eventually saw reason. At our Western Circuit meetings considerable suspicion about the Bristol scheme was expressed by colleagues, but after a time some of the braver brethren adopted some aspects of it and there was agreement that the old unregulated system could not last.

At the early meetings in Somerset House I explained the Bristol scheme and urged its wholesale adoption. Probably wisely, the Group decided a more sophisticated scheme was required.

Mathew Thorpe was anxious to have district judges onside with the new procedures and part of my role was to persuade the Association nationally and then judges around the country to endorse it. Eventually most conceded and the ‘Pilot scheme’ eventually became the norm. This was undoubtedly a major reform and an enormous improvement on what had gone before, and its success must be due to the fact that it was devised by people who knew what they were talking about with a passionate desire to avoid the abuses of the past.