The 25th Anniversary of the Ancillary Relief Procedural Scheme | Part 1 - Sir Nicholas Mostyn

SIR NICHOLAS MOSTYN

Then: a junior barrister, and a member of the ARWP from

the start

now: a high court judge

I all distinctly recall the fluttering in the dovecote caused by the decision of Booth J in Evans v Evans [1990] 1 WLR 575. She was appalled at the costs that had been wasted in that case, although as Maggie Rae has pointed out, the then procedure under the Matrimonial Causes Rules 1977 seemed to have been perversely designed in order to generate and waste as much costs as possible. Booth J ordained, with the then President’s agreement, that henceforth you would be confined to one affidavit of means, and one questionnaire. Valuations of land should be done jointly. Valuations of private companies would be avoided. Professional witnesses should not be partisan. There should be agreed bundles. There should be an agreed chronology. There should be an estimate of costs incurred. It sounds familiar, does it not?

In 1992 Senior District Judge Gerald Angel brought into being the Ancillary Relief Working Party. As a keen junior barrister, one of the editors of the then new but already highly successful At A Glance, and with some computing know-how (learned at Ampleforth in the 1970s), I was invited onto the ARWP. This was in July 1992. Mr Justice Thorpe, James Holman QC, and Jane Simpson were also there at the start. After a year Mr Justice Thorpe took over the formal chairmanship of the working party, and District Judge Bird joined us. Paul Coleridge QC joined the group in 1995 on James Holman’s elevation to the bench. Dr Stephen Cretney and Professor Bailey-Harris also joined in 1995. Maggie Rae joined the group in about 1996.

We all met in Gerald Angel’s magnificent room in Somerset House. We tried to devise a set of rules from the foot of Evans v Evans, which also incorporated the experiences learned from Roger Bird’s successful local scheme in Bristol. I was designated the draftsman of these rules. The minutes record many instances where a decision would be reached and I would be sent away to draft the necessary rule.

Three key reforms soon began to take shape in our collective deliberations. First, we agreed that the affidavit of means had to be replaced by something far more prescriptive in order to avoid dissimulation and nondisclosure. There had to be a inescapable format. The first approach to this was to prescribe what had to go in an affidavit of means, but we concluded that that likewise would allow too much wiggle room. So the idea of it being done in a Form was born.

We had already by then merged the dreaded forms M1 and M2, and named the conjoined product Form A. Forms B, C and D had been created – Form B related to the then occasional application under section 10(2). I cannot remember what Forms C and D did. At all events I distinctly recall Mathew Thorpe and Gerald Angel telling me to go home and draft on my clever computer the disclosure form which would be known as Form E. I recall many hours in front of my then cutting-edge IBM PS/2 computer (storage 720 KB) grappling with the table function in my word processing program, WordPerfect. Maggie, who joined the committee later, assisted me in devising the structure. I eventually came up with a template – Form E – which has basically survived unaltered to the present day.

It was a fundamental principle that Form E would be one-sizefits- all: it would be used equally by princes and paupers. That said, I do recall, when Paul Coleridge and I went out on our national

road tour to present the new scheme to judiciary and practitioners, being berated by a district judge who sat in Salford as to the complete superfluity of so many boxes in the form. He maintained that for the majority of cases in his bailiwick the only boxes that were needed were debts and conduct. He did not think the box about krugerrands would be filled in very often in Salford.

The second key principle was that every case should be the subject of strict judicial management at a hearing which we christened “the First Appointment”. This was Gerald Angel’s idea, I think. It would take place after the Forms E had been served and after questionnaires had been exchanged. You would have the right to put questions once only; but the court would decide which questions should be answered. Thereafter, any further questions would require the leave of the court. It is hard to explain now quite how radical a change this was. For many it was almost as great a confinement of freedom as had been the revocation of the Edict of Nantes. The first appointment would define the entire parameters of the case. At that event the scope of disclosure and the extent of expert evidence would be decided. This was earthshaking.

The third key principle was that once the questions had been answered and the valuations obtained there would be a privileged mediation session presided over by a judge. We stole this idea from Australia. There every money case was subject to a privileged conciliation session in the presence of a junior judicial officer. We shamelessly filched their rules. Jane Simpson, however, was very clear that it should have a name which was not derivative of conciliation or mediation. She proposed that it should be known as the Financial Dispute Resolution appointment. Thus the FDR was born.

The scheme was now taking shape. The requirement to make open proposals was insisted on by Mr Justice Wall, who had made a written submission to the committee. Estimates of costs, as suggested by Booth J in Evans, were put into the scheme. And so it began in 27 courts on 1 October 1996. See the Practice Direction [1996] 2 FLR 368. The data collected by the pilot was statistically analysed; the experiment was judged to be a success. It was then rolled out nationally in 2000.

It is remarkable how the essential structure has been unaltered these last 25 years. The scheme has in my opinion worked well generally. Problems have been caused by a lack of judicial resources. It has not been until recently that we have grappled with the necessity for specialisation and the ticketing of judges to do financial remedy work. This has been achieved with the creation of the Financial Remedies Courts and their establishment on a permanent footing within the Family Court. No more will a litigant face arriving at court to find that his or her judge is a conveyancer who has never done a divorce money case in his or her life. The scheme also faltered by over-listing cases with insufficient time estimates. In an overburdened list the temptation of the judge simply to accept an agreed set of directions without independent scrutiny is very strong. Similarly, in a crowded FDR list the temptation to accept without intervention a joint statement that the case is not capable of settlement is also very strong. These problems we believe will be largely resolved by the advent of the FRCs.

I think that we can look back with great pride on what we achieved 25 years ago. What we did pre-empted by four years the Woolf revolution in the civil field. We were the true pioneers in civil justice reform. Long before anyone else we were the ones who dared to think the unthinkable and to change a laissez-faire litigant driven procedural free-for-all into the controlled, judicially managed system we now have. We even had a cartoon created of a Woolf-visaged-wolf draped in a Thorpe-visaged-sheepskin entitled “a Woolf in Thorpe’s clothing”. It seemed quite funny at the time.