Looking back at the Ancillary Relief Procedural Scheme | Part 7 - Sir Paul Coleridge
17th June 2021
For Part 7 of this series, we hear from Sir Paul Coleridge. Sir Paul is a Retired High Court Judge, a mediator and Rrivate FDR Judge. At the time of the Ancillary Relief Scheme, he was a QC.
Then: a QC
now: a Retired High Court Judge, a Mediator and Private FDR Judge
From ARWP to LCAGAR; the gestation and 1996 birth of the new “AR” scheme
Going last I have had the advantage of reading the contributions of all my former colleagues, brothers and sisters, who were involved in the 1996 reforms and I am sure that their recollections of the days before the new procedure are totally accurate. The undisciplined chaos that reigned for more than two full decades after the 1970 substantive reforms is not to be understated. At its worse it lay on the spectrum between Bedlam and nightmare. Endless directions hearings (not always with judicial continuity) to debate the answering of unchecked R.77(4) questionnaires with the reams of unnecessary documents thus thrown up, all did nothing to enhance the reputation of an antediluvian process in the eyes of the poor (and getting poorer) punters. I well remember being led by Robert Johnson QC in a reasonably large money case in front of Anthony Ewbank J when the main disclosure ﬁnally arrived in a battered and overﬂowing suitcase full of random documents on the ﬁrst day of the hearing. Every practitioner knew that the time had come for radical reform, standardisation and streamlining. Ideas and prototypes had already begun to emerge in diﬀerent centres round the country.
Extensive reference has already been made to the committees which came into being to fashion a solution and many a happy and sometimes hot afternoon was spent in Gerald Angel’s room at Somerset House bandying about solutions. I think I can honestly claim credit for only one main contribution to the development of the new ﬁnancial remedy process during this time of change and reform: the Procedural Table encapsulating the “Pilot Scheme” for the new procedure which I drafted over one very hot summer weekend in 1995. It is now to be found in its latest modern incarnation as Table 20 in At A Glance. (My only other innovation around that time was the suggestion that At A Glance should (despite the added cost) have indented and tabbed pages so the practitioner could ﬁnd his way around it whilst on his/her feet.) When James Munby J and I did the same for Public Law Children Act cases in 2003 the earlier experience of creating procedural tables came in handy again!
And so the necessary changes and new scheme having ﬁnally been fashioned and agreed upon the question arose as to how to sell this to the family law fraternity. Barristers and Solicitors are notorious for hating all change to their professional routines and these ideas represented both huge novelty and an injection of serious restraint into the previously unrestrained and unmonitored process.
I was in the process of wracking my tired memory for detailed recollections of how we did it when a (nowadays very rare) ﬂash of inspiration occurred. Surely, I mused, we must have publicised the whole business in the FLBA magazine Family Aﬀairs? I faintly remembered that we had; not really so inspired given I was the editor at the time! I did remember there had been photos and a cartoon depicting Mathew Thorpe as a Woolf (sic). But where would we ﬁnd the relevant copy from twenty-ﬁve years ago ?
Enter that reliable archivist Bodey J (retd). His home is stuﬀed with memorabilia (including a picture of he and I on call night in 1970). I sent him to scurry around in his attic and lo and behold we have the relevant front-page article complete with photos and cartoon. Philip Cayford, the eternal photographer of the FLBA, also found a photo of Nicholas M complete with tin hat. So we have then a full contemporaneous account of the rollout and
the national road shows. I have attached it in specie (with photos and cartoon) to the online version of this piece as an appendix (see www.familylawhub.co.uk/default.aspx?i=ce7619) and I cannot usefully add to it either by way of our collective state of mind at the time or the details of the rollout. I recollect also that it was accompanied by some clever baroque artwork heralding “the arrival of the all singing and dancing new procedure at a Court near you”. It bears a re-read for its depiction of the old system and our hopes for the new. The photo at the foot of page one depicts the Bristol road show chaired by Holman J who was on day release from hearing the ﬁrst round of White… but that is another story. But have our hopes and fears for the new scheme been realised? My judgment would be “yes mostly but not by any means entirely”.
On the plus side:
- The process with Form E as its backbone has clearly provided a uniform, disciplined approach to these tricky applications which have only become more complex with the arrival of ever more complex and valuable ﬁnancial assets and products. This, along with the First Appointment, in the main has produced early and clear issue deﬁnition. In the huge sector of run-of-the-mill district judge litigation this has been revolutionary and positive.
- The arrival of the FDR has provided a very useful and often decisive judicial intervention at a relatively early stage.
- In some cases these changes have led to saving of hearings, time and so costs.
- The simultaneous arrival and development of new technology has also helped.
On the minus side:
1. In a great many of the more complex cases the scale of the costs remains a perpetual concern. However, one needs to be careful not to confuse the impact of the new rules with fallout from the new substantive law arguments generated via post- White decisions from the Supreme Court (Charman, Miller, Radmacher et al). Sharing, pre-existing assets and pre-nups were concepts unknown in 1996. All have added to complexity and so costs.
2. Much early expenditure (“front loading”) of costs arises because of the complexity and comprehensiveness of the Form E.
3. I have heard it said that the existence of the FDR can hold back early negotiation. Too much pre-FDR manoeuvring can prevent serious early negotiation for fear of compromising a party’s position at the scheduled FDR.
4. Resource issues remain a major headache. District judges being expected to absorb and dispose of many cases in a packed FDR list simply wastes costs because none of the parties have conﬁdence in the recommendations which emerge.
So I ﬁnish with the thought that it is time perhaps, after a quarter of a century, for another across the board rethink? But, as I write this, I understand I am way behind the curve. Nicholas M (the head of the FR Court), hungry as ever for innovation and steam- lining, has already appointed a slim and focused working party to think the unthinkable and suggest improvements. I oﬀer my halfpenny-worth by way of three suggestions:
- Could the Form E be updated and uprated to cover the new post-White environment and arguments? Some more boxes to ﬁll perhaps to produce early explanation and elucidation of issues.
- Has the arrival of mediation, the private FDR, and arbitration been fully exploited and injected into the system to tackle the backlog of cases?
- Has the complete disappearance of the Calderbank letter been beneﬁcial overall? My own view, not universally shared, is that to have scrapped it altogether was a step too far. It is said that open negotiation is now the preferred policy and I understand the thinking behind that. However a cleverly judged Calderbank letter remains an extra spur to sensible negotiation. Only the most experienced specialist judges can ignore the contents of an open letter when coming to their own conclusion.
I wonder where we will be in 2046?