Efficient conduct of financial remedy hearings allocated to a High Court judge

A revised statement on the efficient conduct of financial remedy hearings allocated to a High Court judge whether sitting at the Royal Courts of Justice, or elsewhere, has been issued by Mr Justice Mostyn. The President of the Family Division, Sir James Munby, has authorised the release of the statement.

Financial criteria

The revised statement includes the following guidance on the criteria for allocation to a High Court judge:

  • the governing principle is that a case should only be allocated for hearing by a High Court judge if it is exceptionally complex or there is another substantial ground for the case being heard at that level and that allocation to that level is proportionate
  • such allocation is rarely likely to be proportionate unless the net assets exceed £7.5m
  • in determining whether the governing principle is satisfied the following are relevant considerations:
    • the overall net assets exceed £15m; and/or
    • the overall net earned annual income exceeds £1m

In a case falling within the above financial criteria the governing principle will likely, but not necessarily, be satisfied. There will be some relatively straightforward cases falling within that criteria where a transfer to High Court judge level will nevertheless not be proportionate.

Where a case does not fall within the specified financial criteria, but where the net assets are said to exceed £7.5m the following may justify allocation to a High Court judge:

  • there is a serious case advanced of non-disclosure of assets
  • substantial assets are held offshore either directly or through the medium of trust or corporate entities and there may be issues as to the enforceability of any award
  • substantial assets are held in trusts which are said to be variable nuptial settlements
  • substantial assets are held through the medium of unquoted corporate entities and detailed expert valuation evidence will be required
  • a serious, carefully considered and potentially influential argument is being advanced of (i) compensation, (ii) non-matrimonial property, or (iii) conduct
  • there are serious, substantial third party claims to the assets otherwise subject to the dispositive powers of the court
  • there is a serious, carefully considered and potentially influential issue as to the effect of a nuptial agreement
  • the application involves a novel and important point of law.

Where the net assets do not exceed £7.5m, allocation to a High Court judge is only likely to be proportionate where the application involves a novel and important point of law.

Allocation

Allocation will be undertaken as follows:

  • if the case is at High Court judge level by virtue of the self-certification procedure (see below and para 20 of the statement) then the allocated judge will be determined by the judge in charge of the money list (presently Mostyn J) when granting the certificate
  • for this purpose it is vital that the available dates of counsel for the first appointment are stated on the certificate
  • if the case has been transferred to High Court judge level by a district or circuit judge sitting in the Family Court in London or elsewhere on the South-Eastern Circuit the order for transfer, together with available dates of counsel for the next hearing, must be emailed to the judge in charge of the money list (c/o their clerk) who will determine the allocated judge
  • if the case has been transferred to High Court judge level by a district or circuit judge sitting in the Family Court on circuit (other than the South-Eastern Circuit) the order for transfer, together with available dates of counsel for the next hearing, must be emailed to the relevant Family Division liaison judge (c/o their clerk) who will determine the allocated judge
  • if the case has been transferred to High Court judge level by a High Court judge (for example on or following an early application for a freezing injunction) that judge will normally allocate the case to themselves and if they do not do so the procedure for London or the circuits will apply depending on whether the case was heard in London or on circuit

Case management

Every case will be allocated to an individual High Court judge at the earliest opportunity. They will, unless completely impracticable, conduct all future hearings, including the final hearing, apart from the financial dispute resolution appointment (FDR). Early allocation is essential to achieve judicial continuity which is to be regarded as a critically important objective.

If the allocated judge deems it appropriate, the date for the final hearing may be fixed at the first appointment.

The FDR will be listed with a time estimate of one day unless:

  • the parties certify, giving written reasons, that a lesser period is sufficient, and
  • obtain the written permission of the FDR judge (before whom the case is listed for hearing) for the reduced time estimate

Any interlocutory application in the course of the proceedings must be made to the allocated judge, unless to do so would be impracticable or would cause undue delay.

Allocation by self-certification

The guidance on allocation by self-certification takes effect from 1 July 2015 and applies, as far as practicable, to cases commenced before, as well as those commenced on or after, that date. It applies to financial remedy applications pending in the Family Court where the parties seek allocation to a judge of the High Court. It is no longer confined to cases proceeding in the Central Family Court. The self-certification guidance states:

  • an application for a financial remedy will normally only be considered suitable for hearing by a High Court judge if it is exceptionally complex or there is another substantial ground for the case being heard by a High Court judge
  • where the parties seek the allocation of the proceedings to a High Court judge before an allocation direction has been made both counsel or, if counsel are not instructed, solicitor(s) for the parties must complete and file a certificate in the form annexed to the guidance, stating concisely the reasons for certifying that the application is suitable for determination by a judge of the Family Division
  • the completed certificate must be filed with the Clerk of the Rules not less than 21 days before the date fixed for the first appointment in the Family Court
  • the completed certificate will be referred to and considered by the judge of the Family Division in charge of the money list who will determine whether the certificate indicates that the case is suitable for hearing by a High Court judge
  • if so determined, the case will be allocated to a judge of the Family Division and a date fixed for the first appointment before the allocated judge and the merits of the certification will be further considered at that appointment
  • if, at the first appointment, the allocated judge considers that the certification was not appropriate, the proceedings will be re-allocated within the Family Court and the allocated judge may give directions as to case management, including the level of judiciary before whom the case should be listed
  • the allocated judge may make such orders as to costs as considered appropriate
  • where proceedings are allocated to a High Court judge, it is the responsibility of the solicitor for the applicant to ensure that the first appointment fixed in the Family Court is vacated

The full statement can be viewed here.

Geraldine Morris is a solicitor and Head of LexisPSL Family.

Twitter: @GeraldineMorris

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