Looking back at the Ancillary Relief Procedural Scheme | Part 8 - Maggie Rae

Then: a Solicitor at Mishcon de Reya. A member of the committee from about 1996 after it was taken over by the Lord Chancellor.

now: a Consultant with Newton Kearns

I am old enough to remember the time before we had our current procedure for financial remedy applications – then known as ancillary relief. It worked, or in my case didn’t, like this. You issued an application with the court. If your application included a claim for a property adjustment order you needed to support this with an affidavit of means. If it didn’t the respondent had to file an affidavit of means first and it was for the applicant to respond. The reasons for this bizarre provision are lost in the mists of time. I had forgotten this and am very grateful to Mostyn J for reminding me of it.

The then procedural rules required that the affidavit of means should give full particulars of the person’s property and income. That was usually a recipe for disaster.

One judge I remember told me that he never read affidavits of means as they normally consisted of many pages of narrative, liberally spiced with invective and about half a page of incomplete financial disclosure. I agree with that summary and we practitioners had a hard job persuading our clients against telling the long and often ghastly story of their marriage and frequently an even harder job in extracting any financial information from them.

The next stage was the questionnaire. There were no rules, nor usually any time frame or judicial oversight. Questionnaires, and there were often several, were lengthy and contained much that reflected the client’s grievances, rather than matters relevant to the application.

Then there was the trial if you didn’t settle. The court played no role in trying to settle cases. A study (by I think Cardiff Law School) found that in a large number of cases the first attempt at settlement was at the door of the court on the first day of the trial. That was certainly my experience.

I also found getting to a trial was hard. I was usually heavily reliant on experienced practitioners like my old friend Ray Tooth, who knew their way around, to get a date for a hearing.

It was clear the system needed to change and 25 years ago it did. Over those years I have faced criticism from practitioners over for example, the Form E, which I played a part in designing. It is not perfect and it can be improved and work has been done on updating it which I hope will see the light of day and I have been proud to have played a part in that. We now have 3 Forms E instead of the one we started with. My preference would be to go back to just one. To those who lambast Form E, I say think about going back to the Affidavit of Means and shudder.

Involving the court in an oversight of the process, timetabling, reviewing questionnaires has been really helpful, especially now when there has been such an increase in the numbers of litigants in person.

Most importantly involving the court in FDR appointments has been transformative. These have a very high settlement rate. But they work best when judges have sufficient time to deal with them properly. Lack of resources for the court service can threaten all of this. Hopefully the new Financial Remedies Courts will help address this, together with a slug of government money.

I am therefore hugely proud of what was achieved and especially so because it was family lawyers and judges who led it and designed it.