FAMILY PROCEEDINGS RULES

Radical changes have been made to the Family Proceedings Rules (FPR), revolutionising the way in which judges will approach cost claims in ancillary relief applications. It will still be possible to make without prejudice offers, known as Calderbank letters. But they can only ever be of any assistance at a financial dispute resolution appointment, as a trial judge will have no interest in them.

The use of open offers will become a powerful tool in the armoury of the family practitioner.

The existing principle that costs follow the event will be displaced and the general rule will be that that court will not make an order for costs either at a final or interlocutory hearing.

However, the court will be permitted to take into account the litigation conduct of a party to the proceedings. Costs will become a part of the substantive application and treated as a legitimate liability.

This liability will form part of the overall pot, and rather than pursuing its determination out to the end of the case, will be dealt with in the award.

If costs are to be dealt with as part of the substantive application, it remains to be seen what practical effect this will have on the time it will take for cases to be heard as the time estimated for trial will increase. It will also be interesting to see how practitioners will be affected by litigation conduct.

Pensions

Form P2 is the new pension form that separates the three types of pension attachment order – namely periodical payments, lump sum, and death benefits – into different boxes for clarity. Form M1 invites parties to provide details of any other significant matters and to confirm that the pension arrangement has provided the required information. As with all forms it has been adapted to incorporate reference to civil partners. It also provides for the percentage of the pension share to be stated.

It is the view of the pensions industry and of the government that, in England and Wales, pension sharing orders must be expressed as percentages and not by using a formula method.

If it is to be disclosed as part of a voluntary process, or to shorten the court timetable, the policyholder will need to sign the form to provide authorisation for release of the information.

The date on which the pension-sharing order is to take effect is now stated as either from the date of the decree absolute or nullity, or 21 days from the date. It will be needed when a pension-sharing or pension-attachment order is contemplated. The form will need to be completed by the pension provider.

If the information is not to hand when filing Form E, there is now a requirement to produce a copy of the letter of request to the pension provider and an estimated date for production of the data.

At the first appointment the district judge can direct any party to the proceedings to complete a pension inquiry form (rule 2.61D(2)(f) Form P.

Ancillary relief scheme

There has been an Ancillary Relief Scheme since 2 June 2000. In ancillary relief matters the parties are the ‘applicant’ and the ‘respondent’.

When applying for ancillary relief the prayer of the petition usually includes all the ancillary relief that could be applied for and if agreement isn’t reached it goes to Pre-application Protocol. This covers what should be undertaken prior to any litigation and making an application for ancillary relief. Therefore ancillary relief could be obtained by negotiation between the parties without having to make any application to the court.