X v X
| Jurisdiction | England & Wales |
| Judge | Charles J,MR JUSTICE CHARLES |
| Judgment Date | 16 March 2012 |
| Neutral Citation | [2012] EWHC 538 (Fam) |
| Date | 16 March 2012 |
| Court | Family Division |
| Docket Number | Case No: FD09D1210 |
[2012] EWHC 538 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Charles
Case No: FD09D1210
Hearing dates: 5 to 13 December 2011 and 22 February 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment has been handed down without attendance and is a public document. It consists of 10 pages and has been signed and dated by the judge.
The final hearing of this case was adjourned at the end of its seventh day. The reason for this was that, as was accepted by both sides, it had become apparent from an early stage of the hearing that further information needed to be obtained and analysed on matters that had a central impact on the issues to be taken into account.
Over the first two days of the adjourned hearing the parties conducted negotiations that resulted in them reaching an agreement to settle the case. The parties and their advisers are to be congratulated on reaching that agreement.
I was told that it was intended that the application for approval of the agreed solution would be submitted to me to consider without further attendance. On being told this, I informed counsel that I was minded to comment on the product of the preparation and presentation of the case, and gave them the opportunity to address me on whether I should say anything about this, and generally. They took up this opportunity by making written submissions. These were joint submissions signed by leading and junior counsel for both the husband and the wife. They are all from chambers whose members specialise in this work. The submissions did not invite me not to comment on the product of the preparation and presentation of this case.
I indicated to counsel that the reason why I was minded to make some general remarks was that, in my view, this case represents another example of the endemic failure in this field of litigation to prepare and present cases in such a way that, before the trial starts, the issues have been properly identified, and the evidence has been properly gathered and prepared. As they knew, I have raised this issue before.
I refer to examples of cases where I have done so in paragraph 476 of my judgment in Jones v Jones 2009 EWHC 2654 Fam. Before me, that was a case in which the parties raised a number of issues and, in my view, there were significant failures in its preparation and presentation. As explained in the first paragraph of my judgment, I dealt with those issues and failures at length. It seems to me that it would have been unfair for me to make the criticisms that I did without doing so, and that there was a public interest in me taking this approach. An obvious example of those failures, and their product, was that the case had to be adjourned on the first day of a ten day hearing because it was not ready for trial on a central issue of fact relating to an issue raised by the husband, and disputed by the wife, that she had substantial undisclosed assets.
This case is another example of a final hearing having to be adjourned because the presentation of a central issue had not been properly prepared.
The issues raised on the appeal in Jones were much more focused. I am naturally very aware that my judgment received brutal criticism by the two members of the Court of Appeal who were family practitioners, but I stand by my comments in paragraphs 475 to 484 thereof where I said:
"Final general comments for consideration by the profession
475. In making these comments I am acutely aware that (a) in cases I hear I am not privy to discussions between the parties and their advisers, (b) my practice at the bar was not in this field and so my relevant litigation experience is primarily in the field of disputes between shareholders and business partners and litigation relating to private companies and businesses, (c) a great many claims for ancillary relief settle, (d) I only see a small proportion of cases and, save on appeals, they are "big money cases" and (e) as demonstrated by this case (and those I mention below) the general approach, practice and expertise of those who specialise in these cases results in many aspects of them being well prepared and presented.
476. But, in three recent decisions of mine ( D v D and B Ltd [2007] 2 FLR 653, R v R [2009] EWHC 1267 (Fam) and H v H [2009] EWHC 1549 (Fam)) and this case I have reached the conclusion that there were significant flaws in the results of their preparation and presentation, and it is this (and the criticisms made by Moylan J of the presentation of the case in H v H [2008] 2 FLR 2092, which I agree with) that have caused me to invite the profession carefully to consider individually, and as a specialist group, whether they should review and change their general approach to the preparation and presentation of "big money" cases.
477. At the heart of the flaws I have identified in the cases mentioned is the point that in my view there have been failures to properly identify the issues and, by reference to them, properly to identify (a) the findings the court is being invited to make and the reasons why they are relevant, (b) the facts and matters the court is being asked to find as the basis for those findings and (c) the evidence that is needed to achieve these goals. To my mind, all these steps are an essential and basic part of the efficient preparation and presentation of a case because they constitute the essential identification of the facts and matters relied on by each party and how they will set about proving them. So, they are an integral part of the process of establishing the building blocks of the case to be presented by the parties to the court as to how it should exercise its broad statutory discretion.
478. In my view, the points that the court is exercising a broad discretion, and that in assessing the impact of a number of factors necessarily has to take a broad approach, do not support a conclusion that the nuts and bolts or building blocks of litigation should be approached broadly, or with a broad brush, leaving the court, for example:
(i) to weed out and identify the relevant allegations from discursive affidavits and/or valuations or budgets that (a) do not cover certain relevant issues or items, and/or (b) do not provide proper information as to how they have been prepared and are supported,
(ii) to embark on the oral evidence without (a) the facts and matters that each side is inviting the court to find, and by reference to them (b) the factors that they assert are important to the exercise of the statutory discretion, being defined, and then
(iii) to reach findings (a) on generalised assertions and evidence and inferences based thereon, and/or (b) without central points being covered by the evidence, and/or (c) without appropriate disclosure in respect of the issues raised, and/or (d) from extreme positions adopted by the parties without proper attention being paid to the middle ground, and/or (e) by reference to a number of submissions or arguments directed at the client rather than the judge.
479. Each of the above has occurred in one or more of the cases I have mentioned at the start of this part of this judgment.
480. Indeed, in my view the very nature of the overall statutory task, and the broad discretion the court has to exercise in performing it, highlight the need to carry out the basic tasks I have mentioned to identify the facts and matters relied on, and thus the building blocks for the rival arguments as to the assets that are the subject of the s. 25 exercise and how that exercise should be carried out by the court. It seems to me that this should save money and promote the fair resolution of cases.
481. Experience in other fields (e.g. public law Children Act cases, Directors' Disqualification and indeed the history relating to whether proceedings should be started by originating summons or writ and now by a Part 8 claim or claim form) show that the presentation of cases through affidavits and generalised and brief statements of issues is not the best way of presenting disputes of fact and thus, where such disputes exist, the factors that parties invite the court to take into account.
482. So the process of Forms A and E, general identification of the issues through a short statement of issues couched in general and brief terms, questionnaires and s. 25 affidavits does not readily lend itself to a clear and succinct identification of the building blocks of the rival contentions, particularly when there are disputes of fact to be resolved. No doubt this process provides other advantages particularly at the early stages of proceedings and in smaller cases. It is also the basic procedure that has to be followed. But this does not mean that it cannot be supplemented where appropriate.
483. I agree with the suggestion made by counsel for the wife that in many cases after a failed FDR it would be appropriate for directions to be given for an exchange of documents identifying the building blocks of each side's case, particularly when there are disputes of fact and, even more so, if allegations of dishonesty are being advanced. It seems to me that often no such exercise is carried out, or committed to paper, before the preparation of skeleton arguments which is obviously much too late to inform the process of gathering evidence, and in any event often such skeletons do not set such matters out.
484. To my mind, by the time of an FDR each side should have identified the building blocks of their respective cases. Indeed, the assessment of them and their product is at the heart of an FDR. So the process of considering them should have started...
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