Those seemingly small things that make all the difference

Judges have an enormous degree of discretion within financial remedies. The concept of needs, resources and what is fair are often so nebulous that the available arguments at trial can be varied. The strength of these arguments and the consequential decisions by the court can often depend heavily upon the documentary evidence filed in advance of the hearing itself. It can often be the small details in a set of written documents that makes a difference of thousands of pounds to the outcome recovered by the client.

Being aware of these seemingly small things can often make an enormous outcome to any contested final hearing or FDR. However, even prospects at first appointments can be improved by attention to detail on these small matters. The list below seeks to highlight fifteen common issues that I have noted whilst representing clients but also sitting as a DDJ. There are no doubt far more that could be thought of, and many (if not all) are likely known by those reading. However, it never hurts to emphasise those small matters, particularly when they can make so much of a difference.

I have listed them from 15 down to 1 to retain a degree of intrigue ….

This is a relatively minor matter, but it is symptomatic of what can be a larger issue. Judges are all different, with many varying likes and dislikes. What one judge may not notice can be the most heinous issue for another. It is often impossible to predict but can have a large difference, nonetheless.

An example of this is compliance with court rules. The pressures of time, or the loss of attention to some details over time, lead to some matters being lost. This is particularly true for statements of truth. Many now lack signatures entirely or others say that they have been electronically approved but have no signatures. Many also just contain a signature below a vague wording that suggests that the contents are true to the best of a client’s knowledge and belief.

I came across a judge recently who was particularly exercised by the failure to comply with the rules on practice directions, so much so that we were required to re-submit the documents within the final hearing with the correct form of words. Now whether this made a difference to the outcome is of course unclear. No judge says that will say that this has fed into their thinking in a needs assessment, but there is always a risk that this will be the unconscious result from a frustration with one party. This was an avoidable issue.

For those wondering the correct wording can be found at PD17A of the FPR 2010 and specifically within paragraph 2.2 of that practice direction:

“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

I believe that the facts stated in this witness statement are true.”

Judges (both full time and fee paid) often get their listing for the following day at approximately 3.30/4.00pm. If it is an FDA or FDR list, then it may contain several cases that need to be found on the portal and then have documents downloaded. These may be intertwined with other types of cases or requests to undertake urgent hearings. For FR lists Judges are required to go and find the documents for themselves on the portal, they are not provided by any administrative system.

It is therefore essential that when judge’s get to the portal, they can find the documents if they are on there. This search is made slightly easier with the ‘case view’ tab which is available in public law cases and will no doubt come to FR work in due course. However, being able to locate the bundle is often of paramount importance, but also being able to find it quickly without becoming unduly frustrated. I have lost count of the number of times that a bundle has not been available when I go to look for it, but when the hearing starts it has magically been uploaded at some point that morning after I’d searched for it.

A more critical issue, for the more compliant representative, is to check that it is uploaded into the correct section on the portal. There is a specific section for ‘hearing bundle’ which should be used for FDAs and final hearings, or other directions appointments. I have had to on at least two occasions had to go into the FDR tab (at a final hearing) to find the final hearing bundle hiding in there. There is a degree of trepidation opening such a document, noting that it could have far reaching consequences if it is in fact the FDR bundle..

Anything that delays the judge locating the relevant paperwork will not help, particularly if you represent the Applicant. However, it will help even less if there is no bundle uploaded at all, or the judge is asked to flick between a bundle in multiple sections, which still occurs worryingly regularly!

Unfortunately, sometimes final orders do not mean that the case is finally all over. Often, they can just be the start of the next stage of the litigation with difficulties existing as to how the final order will be enforced.

Final orders need to anticipate that there may be difficulties in all cases, even those which seem to have been amicably agreed. Omissions can sometimes be almost negligent, such as not including a date for the payment of a lump sum, or they can just be sloppy. An example of this would be a default order for sale. If the plan is for there to be a transfer of a property, with the simultaneous release from a mortgage there should really be a default order for sale in case a release from the mortgage is not possible. That will inevitably be the enforcement mechanism that is sought, so why not include it within the final order to avoid the need to apply to enforce the order?

The same is true about the non-payment of lump sums. For these there should at least be the provision for the payment of interest past the due date, but also if the lump sum is to be raised by the re-mortgaging of some retained properties, then an order for sale on that property should be included within original order. Again, this would be the order sought for enforcement so why not include it within the original order?

A further example would be the provisions for the sale of properties. The identity of estate agents and solicitors should be readily agreeable at court (or before) to avoid future litigation about matters. Similarly, agreement should be possible about the terms of that sale including conduct of sales, marketing and sale prices. These can then be included within the final order to avoid them being points of dispute in the future.

It appears to be becoming more common to ask actuaries to undertake calculations for PODE reports on a number of different reasons. These might include ringfencing of pre-matrimonial accruals, ringfencing of post-matrimonial accruals and divisions based on income and capital. Whilst it might be nice to receive a report with sometimes over 4 different percentage figures to litigate about, the reality is that often the majority of these figures are never going to be used by the court.

The original PAG report and now PAG 2 are well known by practitioners and the judiciary. They are regularly quoted in correspondence and then in opening notes to the court. In almost every case argument about pre-marital accrual will be unsuccessful, and in the majority of cases where parties are older arguments about dividing a pension on the basis of capital are going to be similarly unsuccessful. Asking actuaries to calculate these figures is only going to increase the cost of first obtaining the report, but also add costs of discussing with clients the larger number of figures and then litigating between the figures.

Clients will inevitably (and understandably) pick the highest/lowest percentage figure depending on their position. The sight of the expert having written a higher/lower figure will often justify in their own minds why this is a fair outcome and may be difficult to persuade them out of. This may prevent agreement, or require extended negotiation, that can realistically be avoided by being realistic at the time of instruction. Of course the best case needs to be sought for a client, however getting an actuary to calculate figures that are never going to be used can often hinder rather than help the conclusion of a case.

Whilst the technical family procedure rules may require an application to be made if expert assessment is sought, the court is often sympathetic to some applications at first appointment being made without any formal application. There is often however a limit to this. There is usually a degree of sympathy for applications for surveyors reports or any valuation of other assets, as it is hoped that negotiation at court can avoid these. However, there is less sympathy for issues that were realistically always going to exist when the parties attend court. This usually includes PODE reports and any business valuations or forensic accountancy exercise. These matters are predictable issues that are not going to be resolved through negotiation.

For these types of applications practitioners are always best placed making a formal application to avoid any suggestion that the court is not on notice of the application. However, even if this isn’t done at least some proper thought needs to be had as to the proposed expert, their timescales and the costs that would be incurred by the assessment. Even the most sympathetic judge could be resistant to just approving the ‘principle’ of an expert assessment without any detail as to its costs or timescale. Further to this the list of proposed questions should also be available as a bare minimum. Absent these sorts of matters, if the application is actively opposed, the court will likely refuse to consider matters, prompting the need for a further hearing and additional costs.

An assumption that everything will be decided in principle is a dangerous one. Even when things are decided in principle, in my experience it also then leads to considerable negotiation after the first appointment on who the expert is going to be. That discussion could be better had at court, if details of the proposed experts were available.

The often vexed issue of conduct must be properly addressed in cases if it is going to be taken seriously by the court. Duckworth says the following on conduct which I have always thought is a very good summary of the situation:

The main reason why, on the whole, conduct has failed to make its mark in ancillary relief ….. is that judges find it an excruciating bore. A subsidiary reason is that it increases the length of hearings and that is not thought to be a good thing in an era of cost-consciousness.

The recent decision of Mr Justice Peel in N v J [2024] EWFC 184 emphasises that there is a strict procedure that should be followed ‘when there are, or may be, conduct issues’. He specifically emphasises the following:

• Conduct is a specific s25 factor and must always be pleaded as such. It is wholly inappropriate to advance matters at final hearing as part of the general circumstances of the case which do not meet the high threshold of conduct.
• A party … must say so at the earliest opportunity … and identify the financial impact caused by the alleged conduct.
• Usually if relied upon the conduct allegations should be clearly set out at Box 4.4 of the party’s form E which exists for that very purpose.

This recent decision, coupled with the lifelong reluctance of the court to engage with conduct arguments, is likely to prevent any engagement with conduct as an issue unless it has been properly pleaded.

Often the sole focus (or practically the sole focus) in any MPS or SPPs application is on the parties’ schedules of income and expenditure. It is therefore sometimes alarming to see what little attention has been had to them. In and amongst all the documents in any bundle these are possibly the only ones that will hold any degree of weight.

Practitioners should ensure (as much as is possible) prior to them being filed that they will stand up to the inevitable scrutiny that will be applied to them. Practitioners should be acutely aware that the opposing side and even sometimes the court will be looking for any reason to say that they are excessive. This issue is particularly acute because these cases are often determined solely on submissions without evidence being called.

Practitioners should particularly check that:

• They bear a degree of resemblance to the outgoings seen in the bank statements filed with the application. It is often too easy an argument to point out that the high costs quoted are far lower in reality.
• They do not include costs that are not going to exist in the immediate future. Often schedules will include payments for debts that are about to be repaid, or for the payment of a mortgage that is due to end with the making of any final order.
• That they are not going to be wildly dissimilar to the budget filed by the other side. It is very difficult to argue coherently that the receiving party’s budget is unreasonable if it is a small fraction of the claimed budget of the paying party.

However, there is sometimes a delicate balance to be struck. It is unusual for a judge not to remove something from the budget as being reasonable. Indeed, it may be quite instinctive for the court to at least be slightly between the two quoted budgets. It might therefore be tactically wise to include something deliberately to the get the court to remove, leaving other more reasonable elements to remain unscathed. This however is tactically risky as it might be then assumed that other things are similarly unrealistic.

There is probably nothing less frustrating at the start of a final hearing to open the e-bundle to find a page number excess of the 350 page limit, there being no bookmarks and no contents page. There are some judges who will simply refuse to deal with a bundle in this form or more than the page count. Other judges will be heavily limited in what they can practically read in advance of the hearing or will be enthused to do.

Certainly, much of the early part of the hearing will be taken up with the court understandably venting its displeasure with the state of the bundle that has been filed. This will no doubt mean that the case is put at a real risk of not being effective just for the failure to follow some simple rules around the provision of the bundle.

Even if the hearing does go ahead the judge will inevitably be frustrated with the situation for most of the day, which cannot assist the arguments made on behalf of the Claimant’s representative. It should not happen, and it cannot happen.

That said, it is probably worse to not have a bundle at all, or a bundle in five different sections, however that is not much to shout about!

A final proposal that is too complicated to explain to the judge, is often not going to be overly persuasive. However, many complex cases require a detailed series of orders to form the final order. Similarly, even the simplest case requires a detailed document to bring about a final resolution. Often the best and most persuasive way to summarise a proposed final order is with a draft of that order itself.

‘This is the order we would like you to make Judge’ is a succinct final submission, followed by ‘let me explain it to you.’ It is always surprising to me how regularly cases get to either the start of a final hearing, or even more so to the stage of hearing closing submissions, and the court does not have a draft order setting out a set of proposals. It is persuasive that the proposal is already in order form, it is persuasive because the court can see how it will work practically and it is persuasive because it is there ready-made to be used by the court.

Nothing is lost by providing a draft final order either at an FDR or at the final hearing. However, it is rarely something that is seen in practice.

These are inevitably the first documents considered by the court upon opening of a hopefully bookmarked bundle. Whilst some practitioners still raise concern about them, I am yet to hear a negative word about them from the judiciary. They are the succinct summary that any judge reading the papers for the first time (in a busy list) wants to see. They are deliberately designed with that audience in mind. However, despite their pivotal importance in case preparation they are very often given last minute thought in their preparation.

ES1s are essentially a case summary within a couple of pages. Yet often there is at least one box on the front page that is blank. On the second page the ‘orders sought at this hearing’ is one of the most important parts of the entire document, however it often says something benign such as ‘list to final hearing’ or ‘standard directions’. This box (on the first document likely to be read by the judge) is the first chance to summarise the case being put. To miss this opportunity is far from ideal.

ES2s have generally phased out the attempts to separately draft schedules of assets. Properly completed they should allow the court to very quickly see what the disputes between the parties are. The form specifically allows for parties to both give their separate valuations of properties, so the court can see where disagreements lie. Despite this the court rarely receives properly completed ES2s. Having two draft versions of the document will go down particularly badly! One section of the document is for all of the Husband’s assets (with both parties saying what they say they are), the middle columns are for the Wife’s assets (with both parties saying what they say they are) and the final columns are for the parties to say what they believe the joint assets are. It is designed not to be complicated but still appears to cause confusion.

The ES2s are also completed on a spreadsheet so that they can automatically undertake the calculations. Again, it is often to see incomplete calculations, or calculations that do not include all the figures within a separate area. If the Excel version of the document no longer includes the ‘Sum’ function then it should be re-inputted. It is not a bad idea to make the original Excel document available for the court to have access to, particularly at final hearings to allow a final computation to be completed.

Finally, all should note that the final column, is not headed ‘comments’ but ‘agreed comments’. The differences between the parties should be evident from the information included within the table and shouldn’t be explained again. If too much is sought to be included within the table it simply goes off the edge of the page and any meaning is lost. Nothing is going to be determined based on conflicting comments in the ‘note’ section of the ES2.

FR proceedings only conclude when parties make offers to each other. Several clients in conference have sought to explain to me how unreasonable their ex-spouse is, before I then politely point out that there is yet to be an offer made to resolve the case. There is sometimes a reluctance to make offers until all information is known. Whilst this may be correct in some cases, the necessity of answers to most questionnaires is limited. Offers can and should be made early in proceedings. It is often the most apparently intractable of disputes that can be readily unlocked by a reasonably attractive offer that at least starts discussion.

This is particularly crucial by the date of an FDR. It is a very difficult basis for a negotiation, or a favourable indication, to have no written position by this date. Despite this it is all too often sought to be argued that someone is not yet able to make an offer even by this date. This attitude at the outset of the FDR only then limits the potential for them to agree on that date, or to get any form of favourable indication. Whilst no doubt there are many parties who seek to frustrate the court process, it is almost never justifiable to not have a written position by the date of the FDR. Even cutting through the missing documentation a position must be almost always reachable.

As above it only limits the effectiveness of a hearing, or the prospects of getting a good indication to have either a very late (in Counsel’s note) or no written offer at the outset of the FDR.

There are clearly many cases where an indication cannot be reached at an FDR. If there is agreement to go off for a business valuation, or CGT calculations or other complicated expert valuations then the court will not know what pot it is dividing. However, there are many cases where the issue is simply the drafting and answering of questionnaires that will often not fundamentally change the case.

The Form G generated in advance of the FDA allows parties to indicate if they agree to the case being utilised as an FDR. Whilst it is commonly considered that the consent of both parties must be required for the court to utilise an FDA as an FDR, it is well within the court’s case management powers to give indications at an early stage and even (then having given a detailed indication) proceed to list the case to a final hearing if agreement is not reached.

The overriding objective specifically requires the court to deal with matters expeditiously and fairly, deal with matters proportionately, save expense and allocate an appropriate share of the court’s resources. It is very possible in certain cases where the issues are objectively very narrow, and the other side’s opposition to dealing with the hearing as an FDA to persuade the judge to move the case forwards. This should of course be warned about in advance of the hearing, but in simple low value cases it is an appropriate method of progressing matters to the hopeful benefit of all parties.

The court regularly reads offers that are as simple as ‘there should be a 60:40 split of the FMH’ or ‘the Wife should receive £200k’. These types of offers always utilise very precise figures, but without any justification thereafter for the use of that number.

For an offer to be in any way persuasive it needs to explain the rationale behind it. In most (if not all) low to medium value cases the outcome should be the outcome of a calculation based upon needs. Very often it is the well-known calculation of proposed property, minus available mortgage equals required lump sum. Just setting out that a certain lump sum is required without any attempt to engage with how that leads to a calculation of needs is unrealistic. It will not stand the scrutiny of the other side’s representative and it will not have a persuasive narrative when it is sought to be explained to the court.

It will also not look persuasive on paper. Often the first understanding that the court will have of the competing offers are the without prejudice offers at FDR, or open offers at final hearing. If these documents (and even more so Counsel’s notes for the substantive hearings) cannot explain the rationale for the offer, then they are immediately at a disadvantage and are less likely to be successful.

Whilst clients sometimes seek unrealistic positions, to simply state an unrealistic position without any justification for it, again only further undermines the weakness of the argument being put. It becomes an unrealistic figure without even an unrealistic argument to back it up.

These types of offers will rarely if ever find any favour with the court.

As above in many low or medium value cases the central assessment is of needs, and utilises the theoretically simple equation of housing needs, minus mortgage capacity equals lump sum needed. The two inputs into this calculation therefore take on considerable importance in the overall outcome that is achieved for the client. The mortgage capacity information can therefore become of crucial importance at a final hearing or FDR.

This should be abundantly obvious to all readers, however frequently the mortgage capacity information available for these crucial hearings is in a particularly poor form and ends up harming the client’s case. The standard default order provides for clients to provide:

Evidence to be in the form of a certificate from a mortgage broker, indicating (i) the information the calculation is based on; (ii) the maximum mortgage that the broker believes [he] / [she] will be able to secure; (iii) the term of that mortgage; and (iv) the repayments that would be required on that mortgage on a repayment basis and on an interest only basis.

The order is phrased in this way because this is what is going to be the most informative for the court and thus likely best for the client. Independent brokers can cost money to produce these reports but these costs are made up with the moneys that can be saved in the long term. Crucially these documents should be for a realistic duration and for an affordable monthly repayment. I have personally seen people in their 60s putting forward mortgage capacity documents suggesting they will pay sums off over 15 years. Or mortgage repayments quoted higher than an individual’s salary. These documents do not assist the case put by that individual, so why have they managed to get into the bundle.

The mortgage capacity document will be at the heart of the court’s decision making process and thus it must be afforded appropriate weight within the preparation. Documents that contain no monthly repayment figure or continue until the client will have retired likely only overstate their mortgage capacity and thus undervalue their need for a lump sum.

The draft standard order also provides for parties who disagree on the other parties’ mortgage capacity to file an amended version of their own:

Each party shall have permission to serve on the other party such evidence upon which they seek to rely in relation to the other’s mortgage capacity within [number] days of receipt of the other’s evidence as to their own mortgage capacity.

In my experience this is a rarely used provision, but it shouldn’t be. Again, in cases where the other parties’ mortgage capacity is going to be of central importance, focus should be had on challenging it. By the time of the final hearing it will be too late. The court will rightly query what evidence there is to counteract the other’s side’s mortgage capacity. However, there is and should always be consideration to seeing contradicting evidence in support, adding pressure to the originally quoted mortgage capacity. At the very least it can be used to argue that the court should split the difference between the two quoted capacities.

Given what I have written above this last heading should be of no surprise. It is the other input in the standard calculation after mortgage capacity and is of greater if not equal importance. It was once explained to me that many of these cases become a ‘beauty pageant of property particulars’ and I have thereafter always thought of them as such.

Far too often black and white and blurred particulars are included within the bundle. They frequently are accompanied by tiny photographs of the front of the property, a lack of any actual address for the property itself and simply a figure that the property is on for. This type of particular, compared to glossy, colour particulars with good quality photographs and an understanding of where the property is clearly a non-starter. Therefore, why are such poor quality particulars put before the court? They not only do not assist but they mean that the court will simply exclude them or place no reliance upon them. This leads to the greater risk that the other parties’ particulars will be preferred to the detriment of the client’s case.

Further to their artistic impression property particulars should be carefully and specifically chosen because they can heavily impact upon any case. Common issues include:

• Putting forward properties that are more expensive than can be afforded from sale proceeds: If the particulars do not work mathematically, they will be immediately discounted.
• Putting forward a wide range of property prices: The other side (and possibly the court) will immediately latch on to the lower end of any bracket and use that as their baseline for an argument about needs. Any property within the range will be considered to ‘meet needs’ and thus the range should ideally be kept focussed. Once a range of £180k-£220k of particulars are put forward it is very difficult to argue that a parties needs can only be met for £220k.
• Putting forward diametrically opposed properties for the other party: Courts have dealt with many of these cases. The sight of one party ‘needing’ to live in a detached house in the suburbs is not realistic when the other party’s needs apparently can be met in a single bedroomed apartment in a tower block. This will be spotted and immediately puts the party on the backfoot.
• Putting forward properties for children that are clearly unjustifiable: Whilst no doubt done on instructions the suggestion that the children’s needs can be met with 50% of the proceeds, albeit they have to live in a poor-quality house and share a bedroom will not withstand any scrutiny. There is no good answer in cross examination to ‘Do you really want your children living here’. Yet these properties continue to be put forward (often in black and white photographs).

It is difficult to emphasise enough how often these cases hinge upon the court’s determination of what a party’s housing needs are. It so often is the battle of the property particulars, however if those were prepared without proper thought and care, that battle can be so readily lost, or fatally undermined. There will often not be a more important set of documents within the bundle in very many cases, yet they are often overlooked in favour of far less relevant documents or issues.

As above there are no doubt others that I could have included in this list (but it is quite long enough). Similarly, there is probably little doubt that many are recognised by professionals. However hopefully the above emphasises the importance often in the focussed preparation for cases within the paperwork provided. Often poor preparation in the paperwork, often many weeks prior to the trial, can have an overwhelming impact on the outcome that is eventually reached. It never hurts to reiterate this.