Resolution Guides to Good Practice

Dealing with Clients Correspondence Service of Documents Discussing Dispute Resolution Options Mediation Dealing with Litigants in Person Collaborative Law Client Care Letters The Proceeds of Crime Act 2002 Dealing with Financial Dispute Resolution Appointments Working with the Bar in Family Cases Instructing Experts in Applications for a Financial Order Instructing Experts in Proceedings Involving Children Disclosure in Financial Order Applications Referrals to Contact Centres Preparing Pre- and Post-Marital Agreements

Guides to Good Practice i Resolution PO Box 302 Orpington Kent BR6 8QX DX 154460 Petts Wood 3

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ii Guides to Good Practice Contents

Introduction 1

Resolution Code of Practice 2

Guide to Good Practice for Family Lawyers in Dealing with Clients 3 Introduction 3 First telephone contact with client 3 Meeting with client 4 Consider any emergency steps needed 5 Role of the lawyer 6 Costs estimates 7 First letter to the client 7 Letter to the other party or their lawyer 8 Conduct of the case 8 Offers of settlement and their impact on costs in financial cases 10 Preparation for hearings 10 The hearing 12 Confidentiality 13 End of the case 13 Client terminating instructions of lawyer 14 Lawyer terminating retainer with the client 14 Family lawyers and personal relationships with clients 14

Guide to Good Practice on Correspondence 17 Planning for the court hearing 18 Faxes and emails 18 Aims and priorities in correspondence 19 Timing of correspondence 19 Effect of letters 20 Examples of good and bad practice 25

Guide to Good Practice on the Service of Documents 27 Introduction 27 Timing 27 Prior warning 28 Use of process servers 28 Venue for service 29 After service 29

Guide to Good Practice on Discussing Dispute Resolution Options 31 How to enable the client to make an informed choice 32 What is important to this client? 32 Aspirations 32

Guide to Good Practice on Mediation 37 Qualifications, training and ongoing professional support 38

Guides to Good Practice iii Scope and principles of mediation 40 Conduct of mediation 46 Other professional practice considerations 60

Guide to Good Practice on Dealing with Litigants in Person 67 Introduction 67 First contact 67 Communications generally 69 The petition or other proceedings 70 Service of proceedings 71 Children disputes 71 Agreements and consent orders 72 Contact at court 73 Constant harassment 73 Dealing with lay advisers 73

Guide to Good Practice for Collaborative Professionals 75 Involvement of third parties 75 Before the first four-way meeting 75 Timeline for each four-way meeting 75 The first and subsequent four-way meetings 76 Financial disclosure 77 Discussing options and possible outcomes in the collaborative process 78 Action to be taken following the conclusion of an agreement 79 Action to be taken if the collaborative process breaks down 80

Guide to Good Practice on Client Care Letters 81 Introduction: drafting a client care letter 81 Terms of business 83 Responsibilities 83 Hours of business 84 Equality and diversity 84 Data protection 84 Storage of documents 84 Outsourcing of work 84 Vetting of files and confidentiality 85 Limiting liability 85 Applicable law 85 Terminating the retainer 85 Payment of commissions 85 Payment of interest 85 Distance selling 86 Financial services 86 Precedent letter of engagement 87 Precedent legal aid client care letter 102 Precedent family help letter 106

Guide to Good Practice on the Proceeds of Crime Act 2002 109

iv Guides to Good Practice Guide to Good Practice on Dealing with Financial Dispute Resolution Appointments 111 Introduction 111 Prior to FDR 112 At the FDR 113 In respect of any proposed agreement 115 Appendix A: Guidance Note for Drafting Position Statement/Case Outline 118 Appendix B: Precedent Position Statement/Case Outline 121

Guide to Good Practice for Lawyers on Working with the Bar in Family Cases 125 Introduction 125 What are the respective roles of the family lawyer and barrister? 125 When should a barrister be instructed? 126 The selection of a barrister for a particular court or collaborative case 127 How should the barrister of choice be instructed? 127 Managing communication between barrister, lawyer and the client 129 Managing conferences 131 Specific issues of good practice in applications for a financial order 132 Preparation for hearing and papers for consideration 133 The hearing 134 Fees 135

Guide to Good Practice for Instructing Experts in Applications for a Financial Order 137 Introduction 137 When is an expert required? 138 What is the role of an expert? 139 When to instruct an expert – timing 140 How to select a particular expert 140 Information to obtain about potential experts prior to first appointment 141 The joint letter of instruction 142 Providing information to the expert 144 Attendance at meetings with the expert or inspections of property 144 Communications with an expert and supplementary instructions 144 The expert’s report 145 Questions following the expert’s report 145 An expert’s attendance at court 145 Best practice if two experts are to be instructed 146 The instruction of ‘shadow experts’ – when it is appropriate and their role 146 Appendix A: Part 25 FPR 2010 – Experts and Assessors 148 Appendix B: Practice Direction 25A – Experts and Assessors 153 Appendices C–E: Example joint letters 171

Guide to Good Practice on Instructing Experts in Proceedings Involving Children 183 Introduction 183 The court’s role 183 Finding an expert 183 Instructing experts 185 Pre-application instructions of experts 186

Guides to Good Practice v Duties of experts 186 Letters of instruction 186 Timescales (court proceedings) 187 Appendices A–B: Suggested questions for experts 188

Guide to Good Practice on Disclosure in Financial Order Applications 191 Introduction 191 The duty to disclose 191 The importance that the court attaches to the duty of disclosure in financial cases 195 The mechanics of disclosure 196 Privilege and disclosure 199 Disclosure and the Proceeds of Crime Act 2002 202 The legal limitations to self-help in obtaining disclosure 202 Duty to disclose all relevant information to the client 209 Confidentiality 210 When should the lawyer decline to act? 211

Guide to Good Practice on Referrals to Contact Centres 213 Introduction 213 Referrals to supported contact centres 213 Referrals to supervised contact centres 214 Contact activity directions and conditions 215

Guide to Good Practice for Lawyers Preparing Pre- and Post-Marital Agreements 217 Introduction 217 Discussions with your client 217 Forum for discussions 221 Safeguards and general considerations 222

vi Guides to Good Practice Introduction

At a time of plans to modernise the family justice system, the increase in the number of self- representing litigants and commercial pressures upon our members, Resolution is pleased to publish revised and updated good practice guides. These guides take account of the Family Procedure Rules 2010, the SRA Handbook and guidance from recent case law.

The guides are intended to assist family lawyers to:

• Adhere to and espouse the Resolution Code of Practice, which includes assisting our clients to resolve disputes in a non-confrontational way, preserving people’s dignity and encouraging agreements.

• Comply with the Family Law Protocol (3rd edition, November 2010), which endorses the Resolution Code of Practice at paragraph 1.2.1.

• Assist the judiciary in achieving the overriding objective ‘of enabling the court to deal with cases justly’.

• Research and cope with particular areas of concern.

A hard copy of the guide is being sent to each of our 6,000 members and it is also to be found on our website at www.resolution.org.uk. It is to be found on the public part of the website and therefore available to all, and this will hopefully be helpful to self-representing litigants.

The guides are periodically revised and all comments and suggestions for new guides are most welcome.

Our Code of Practice is central to Resolution membership and the guides will assist members to successfully meet the challenges of adhering to the Code.

Considerable thanks are due to the original authors of the guides; to the current members of the Standards Committee (who are responsible for maintaining and updating the guides); and to many other Resolution members who have helped out in any number of ways.

David Woodward Chair of the Standards Committee [email protected]

September 2012

Guides to Good Practice 1 Resolution Code of Practice

Membership of Resolution commits family lawyers to resolving disputes in a non-confrontational way.

We believe that family law disputes should be dealt with in a constructive way designed to preserve people’s dignity and to encourage agreements.

Members of Resolution are required to:

ü Conduct matters in a constructive and non-confrontational way.

ü Avoid use of inflammatory language, both written and spoken.

ü Retain professional objectivity and respect for everyone involved.

ü Take into account the long-term consequences of actions and communications as well as the short-term implications.

ü Encourage clients to put the best interests of the children first.

ü Emphasise to clients the importance of being open and honest in all dealings.

ü Make clients aware of the benefits of behaving in a civilised way.

ü Keep financial and children issues separate.

ü Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional.

ü Inform clients of the options, eg counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings.

ü Abide by the Resolution Guides to Good Practice.

This Code should be read in conjunction with the Law Society’s Family Law Protocol. All solicitors are subject to the Solicitors Practice Rules.

2 Guides to Good Practice Guide to Good Practice for Family Lawyers in Dealings with Clients

1. Introduction

The professional relationship between lawyer and client is of central importance when representing the client and needs to be nurtured from the outset and maintained throughout the period of instruction. It is important to ensure that the client appreciates and understands the lawyer’s role and function in representing the client. In family cases, the work is often difficult and demanding, and of a sensitive nature, and the following good practice guidance is intended to assist lawyers practising in this area.

This guide should be read in conjunction with:

• the Resolution Code of Practice

• the Guide to Good Practice on Disclosure in Financial Order Applications

• the Guide to Good Practice on Correspondence

• the Solicitors Regulation Authority Solicitors’ Code of Conduct

• the Family Law Protocol

• the Family Procedure Rules

• the Legal Services Commission Transaction Criteria

2. First telephone contact with client

The first contact with the client will be when they contact the firm (usually by telephone) to make an appointment. It is important to ensure that an appropriate system is in place to handle such enquiries and that the following information is obtained:

• The nature of the enquiry and whether or not an urgent appointment is needed.

• The extent of the client’s means as they may need the assistance of public funding and the firm may or may not offer this service.

• Sufficient details to check if there is a potential conflict of interest.

The potential costs of the first meeting should be set out. Some firms offer a free first meeting and therefore the client may think all firms offer this facility. Clarification concerning the cost of the first meeting may avoid embarrassment for both the lawyer and the client.

Ask the client to bring documents to provide proof of identity (passport/driving licence and utility bill or credit card bill less than three months old) to comply with the Money Laundering Regulations.

Guides to Good Practice 3 3. Meeting with the client

3.1 Clients should be advised either in the initial telephone conversation or at the commencement of the first meeting of the restrictions on the handling of confidential information. Both the client’s and the lawyer’s obligations should be made plain at the outset to prevent difficulties later. See the Guide to Good Practice on Disclosure in Financial Order Applications.

3.2 Clients seeking legal advice and assistance in family matters are, in many cases, daunted at the prospect of consulting a lawyer and the initial meeting can be traumatic and emotional. It is therefore important for the lawyer to maintain a sympathetic, calm and objective approach to help the client feel at ease, whilst at the same time gathering essential information from the client to assess the problems and give advice.

The client may well be uncertain about what they are seeking by way of services from the lawyer instructed (beyond perhaps knowing that such instruction is necessary). Accordingly the lawyer must be aware that they are starting to give shape to that role and relationship from the first telephone call and in particular from the first meeting (see ‘role of the lawyer’ below).

3.3 The aims of the first meeting are:

3.3.1 To gather relevant information, including all contact details. Agree methods of future communication, including the address to which correspondence should be sent and whether the client’s email is confidential.

3.3.2 To discuss with the client and provide advice with regard to the following:

(a) The possibility of a reconciliation.

(b) Whether a divorce or judicial separation is appropriate.

(c) The merits and use of mediation, collaborative law or other methods of dispute resolution that may be considered as an alternative route at any stage throughout the proceedings.

(d) The problems the client is experiencing and what outcome will meet their needs. Consider the initial steps to be taken, including any emergency steps that are necessary (see section 4 below). Explain to the client the benefits of trying to resolve issues constructively and non-confrontationally, and the impact of such an approach on costs.

(e) Whether counselling could help the client to cope with distress/anger/depression and other emotions clients often suffer in the early stages of a relationship breakdown.

(f) The possible timescale and potential costs involved. Confirm that a client care letter will be sent setting out terms of business.

(g) How the legal costs will be funded. Help the client to be aware of and keep in mind at all times the principle of proportionality with regard to steps to be taken, possible outcome and likely cost in resolving issues.

4 Guides to Good Practice (h) The making of a will and the severing of any joint tenancy in respect of jointly owned property if relevant.

3.4 Remember:

(a) If the client is uncertain as to the way forward, they may need time to reflect and consider the advice given.

(b) At the first meeting the client may merely be seeking initial advice and may not require the solicitor to do anything further for the time being.

(d) There is only so much information that a client can absorb, particularly at a time of stress and when presented with unfamiliar terminology.

(e) It will usually be appropriate for advice given to be recorded in a letter to the client (see section 6 below).

(f) Law-based options are only one avenue for resolving the issues that the client faces. A full range of options should be kept in mind, as resolutions achieved through dialogue are likely to solve the problem more effectively, more cheaply and more quickly.

(g) Professionals should keep the needs of any children at the forefront of their minds, even when the client does not regard the children as presenting particular issues to address. Parents do not all have automatic insight as to the needs of their children at these times, or understanding of the best ways in which they can be addressed. Solicitors should ensure that they have the skills to help clients address this aspect and promote, where appropriate, the client’s use of tools that can assist, eg Resolution’s Separation and divorce: helping parents to help children, or attendance at Parenting after Parting workshops or similar help.

4. Consider any emergency steps needed

4.1 Ascertain whether it is necessary to take urgent steps to safeguard the client’s or a child’s personal safety, or if assets need safeguarding.

4.2 Apply for Land Registry official copies to check ownership and charges, notices and restrictions on property, and to check whether or not a notice needs to be registered, or a restriction sought, to safeguard the client’s interest.

4.3 Consider if any alternative remedy is available to avoid immediate injunction proceedings. If not, consider and advise the client on appropriate steps that can be taken.

4.4 Advise the client on court procedure, the costs involved and the implications of an adverse costs order.

Guides to Good Practice 5 5. Role of the lawyer

5.1 The lawyer’s role will vary according to the client. Many may seek no more than legal advice and management of their ‘case’. Others seek help from their lawyer to assist their identifying the objectives that are realistic to pursue and for help in identifying how they may best be pursued, together with creative ways of involving different professionals in the management of that process. The lawyer’s role is constantly to build clarity for the client (including clarity about what the lawyer can do) and to help manage the client’s expectations as to what can be achieved by pursuing the different options. The lawyer will be careful not to stray from their training and competence, eg into the role of a counselling service.

So the first four crucial tasks with the client will usually involve helping them to become clear about:

• the lawyer’s role;

• the client’s realistic objectives;

• the options that the client has as regards pursuing those objectives; and

• particular information about the risks and the likely costs involved in those routes, in terms of emotional and financial costs, the demands that the different options will put upon the client and members of the family, the likelihood of achieving the desired outcome and the impact of failure to do so.

This information will need to be kept under review and revised as the case unfolds.

When the client is seeking our help to define what objectives it is sensible to pursue then we can seldom do better than to help them reach out for what is most principled and what, whilst promoting their own interests, also promotes the welfare of the family as a whole, in particular what is in the interests of any children.

Clients generally have a diminished capacity to respond to their children’s needs at the time of separation and family change. They are likely to need help in identifying how their children can best be helped through the crisis of separation. We should have guidance, information and materials at our finger-tips, as well as being able to effect introductions to appropriate alternative services, such as counselling, mediation and Parenting after Parting services.

5.2 Emotions can run high. Care must be taken by the lawyer to avoid heightening such emotions.

5.3 The client needs to be aware of the lawyer’s duties to other parties such as the court and the Legal Services Commission.

5.4 It is good practice and assists clients if they are made aware that the lawyer is a member of Resolution and they are provided with a copy of the Resolution Code.

6 Guides to Good Practice 6. Costs estimates

Unexpectedly high bills have done more to sour solicitor-client relationships over the years than any other aspect involved. Solicitors’ enthusiasm and hope that things will be ok, combined with the impossibility of anticipating the complications that so often develop in cases, makes it all too easy to underestimate the work that may be involved in achieving desired outcomes.

Solicitors must be up to date with the current case law on costs estimates. See, for example, CKFT v Minkin [2012] EWCA Civ 546 and Reynolds v Stone Rowe Brewer [2008] EWHC 497, cases that make clear the difficulties in providing low initial estimates combined with the challenges of insisting on payments on account as the case then progresses.

It will generally be safer to provide generous figures that anticipate things going wrong, alongside lower estimates of what may be involved if matters proceed smoothly. Clients are entitled to know how bad things could get before embarking on a course of litigation, particularly where they are looking to choose between litigation and mediation, collaborative or other similar process.

7. First letter to the client

7.1 On receipt of instructions the client must be sent a letter confirming terms of business, the extent of the firm’s retainer and setting out the firm’s charges pursuant to the Solicitors’ Code of Conduct Rule. You may wish to use Resolution’s precedent letter of engagement (see page 87) and the letter could also contain a standard paragraph as follows:

‘[AB], who will be acting for you, is a member of Resolution, which means that they are required to comply with a Code of Practice, a copy of which is enclosed. When disputes are resolved in the constructive and non-confrontational way promoted by the Code the outcome can be much better, both financially and emotionally, for all concerned. By signing and returning this letter you agree to your matter being handled in this way.’

Then if the client subsequently asks you to do something in breach of the Code you can refer back to this agreement.

7.2 At the outset, provide the client with the names and roles of the individuals they are likely to come into contact with on their case. Give them the name of someone they can contact when the lawyer is unavailable, for example the lawyer’s secretary. Explain what steps they should take in the event of an emergency outside office hours.

7.3 It is usually good practice to follow up the initial meeting with a letter to the client containing a summary of advice given, steps (if any) to be taken, and an indication of the way forward.

7.4 If the client is eligible for public funding the initial letter must explain the public funding scheme and comply with the requirements of the Legal Services Commission. If an emergency certificate cannot be granted immediately, the client should be warned that it may take some time for the Legal Services Commission to consider the application for a public funding certificate and that either no work may be carried out until the certificate is issued or, alternatively, that the client may be billed privately for work carried out prior to the issue of the certificate.

Guides to Good Practice 7 7.5 If the client is or may be eligible for public funding, but has indicated their intention to instruct their lawyer on a privately paying basis, they must still be made aware of their potential entitlement to public funding and, where appropriate, be referred to a firm that can assist. They should also be made aware of the costs protection that arises in favour of a client who has the benefit of a public funding certificate.

7.6 The client must also be made aware of the implications of costs orders that could be made in any action taken.

8. Letter to the other party or their lawyer

On writing to the other party or their lawyer, it is important that the contents of that first letter are discussed with the client. The client should usually approve the letter in draft before it is sent. The correspondence should not contain confrontational language, but should aim to help resolve matters and to open up dialogue between the lawyers and, if possible, the parties. See the Guide to Good Practice on Correspondence. If writing to another party who is unrepresented, they should be advised to instruct their own lawyer for independent legal advice. It may be helpful to enclose an additional copy of the letter and any documents enclosed that can be handed to the lawyer instructed. See the Guide to Good Practice on Dealing with Litigants in Person.

9. Conduct of the case

9.1 In order to maintain a good working relationship, the client needs to be informed on a regular basis of the progress of their case. It is good practice to have a system in place where there is a regular review of the file to avoid any unnecessary delays. Clients seek advice in correspondence, by telephone and at meetings. To ensure that there is an accurate record of instructions given, it is prudent to:

(a) Ensure that all significant advice given, instructions received and action agreed upon is confirmed in writing to the client. If the client refuses to fund such correspondence and does not wish advice given to be recorded in writing, consider whether it is appropriate to continue to act.

(b) Keep on file a full record of all attendances on the client, by telephone and by appointment, to ensure there is a clear record of all matters discussed, instructions received and advice given. This record helps to protect the lawyer if there are any future problems or queries.

9.2 Disclose all relevant correspondence to the client. However, consider whether it is appropriate to charge a client for a covering letter if the correspondence it attaches is self explanatory; will correspondence enclosed under cover of a compliments slip suffice? See the Guide to Good Practice on Correspondence. If the tone or content of the correspondence is unnecessarily hostile or personal and you believe it could upset your client, heighten emotions between the parties and possibly prevent agreement, consider whether to paraphrase the content of it to your client or to invite your client in to discuss the content.

8 Guides to Good Practice 9.3 Discuss with the client any important correspondence addressed to the other party before it is sent. Such correspondence should usually be approved by the client, in draft, to ensure that the client’s instructions are understood and followed and that the client fully understands what will be stated on their behalf.

9.4 Ensure the client’s file is kept in good order and is easy to follow. Consider devising a standard structure for files of all fee earners within the department, so that any fee earner can locate relevant material without difficulty.

9.5 Maintain a case plan if appropriate.

9.6 Make settlement proposals as soon as the appropriate level of disclosure has been achieved.

9.7 Be prepared and have an agenda of what needs to be discussed when meeting the client. If information is required, tell the client prior to the meeting.

9.8 Ensure correspondence is always written in clear language that the client can understand. To assist clients, it may be necessary to set out different matters under different headings or in separate letters (see the Resolution Guide to Good Practice on Correspondence).

9.9 Avoid being a post box. Ensure that each letter has a purpose and moves matters forward.

9.10 Clients feel reassured if they have access to their lawyer by telephone. However, beware of lengthy telephone calls. Clients sometimes do not appreciate that charges arise, even if they are making the call. Help the client to be concise and to appreciate that a lawyer’s time costs them money.

9.11 It is important and courteous for communications from clients, however received, to be responded to promptly. Aim to return telephone calls within 24 hours. If there is likely to be a noticeable delay in contacting the client to deal with their query, it will usually be good practice for them to be contacted, perhaps by a lawyer’s secretary, to inform them of the anticipated delay and when they may expect to hear from their lawyer. Managing the client’s expectations is key in this area.

9.12 The pre-action protocol should be followed. If settlement cannot be reached by reasonable negotiation it will be necessary to initiate proceedings. The client should be informed in writing of what is involved, the estimated costs and the likely timetable, in particular the requirement to consider mediation and attend for a mediation information and assessment meeting (MIAM), unless the stipulated exceptions apply. Clients must understand the court’s obligation to consider the use of dispute resolution at every stage of the proceedings and its ability to adjourn the proceedings to allow for DR to take place, if appropriate. This is important if a client is unwilling to attend a MIAM and particularly so if the client instructs proceedings to be commenced without the formal consideration of mediation envisaged by Part 3 of the FPR.

9.13 Ensure costs updates/interim bills are rendered on a regular basis, so the client is always fully aware of costs arising. Give the client appropriate notice of large sums being required on account of future costs, for example before a hearing. It will usually be good practice to include a breakdown of how the total invoiced has been arrived at.

Guides to Good Practice 9 9.14 Where issues relate to children, the client should be informed that the court treats the needs of the children as paramount.

10. Offers of settlement and their impact on costs in financial cases

10.1 Full, frank and clear disclosure must be provided, supported by appropriate documentation from the outset. It helps to give the client a form E (or such financial questionnaire as is considered appropriate) at the initial meeting, or shortly thereafter.

10.2 As soon as all information is available, the importance of putting proposals forward and the merits of making an offer must be impressed on the client. All offers put forward on behalf of the client should first be approved by them, preferably in writing, before being sent to the other party.

10.3 Similarly, all offers received should be sent to the client, together with a covering letter explaining in very clear terms the merits and limitations of the other party’s offer. Where appropriate, clients should be directed to third-party experts, such as accountants and financial advisers, to help them establish the financial implications of a proposed settlement.

10.4 It should also be explained to the client that, once financial remedies proceedings have begun, attempts at settlement must continue throughout the proceedings.

10.5 Clients must continue to be made aware of not only the level of their own costs, but also whether there is any risk of an adverse costs order being made against them. Costs incurred have a serious impact on the question of settlement.

10.6 Consider obtaining a second opinion from a barrister if appropriate.

11. Preparation for hearings

11.1 Within family proceedings there are various applications that can be made. Clients must understand the nature of each application in which they are involved. They need to know the purpose of the application, whether their attendance is mandatory and whether or not they may be called upon to give evidence at the hearing.

11.2 Clients must understand the overriding objective (including their own obligations to further it) and the court’s comprehensive case management powers, including requiring hearings to take place by telephone and striking out a case or dismissing an application for, amongst other things, failure to comply with the FPR.

11.3 In preparing for hearings the cost benefits of negotiating a settlement should always be explained.

11.4 A court hearing can be a very daunting experience for clients, and it assists them if the lawyer explains the layout of the courtroom and the sequence of events. It might also be appropriate and helpful to discuss appropriate dress and conduct in court, including how to address the

10 Guides to Good Practice judge. Clients should be made aware that if they do not understand any question put to them they can ask for clarification.

11.5 Clients often complain that they feel pressurised during FDRs and so particular care should be taken to underline the mechanics of the process, the options available and to ensure that the lawyer attending on the day adopts a quasi-pastoral role (ensuring refreshments and breaks to assist clear thinking) as well as a legal one – so that clients are supported and in the best possible position to make such important decisions. See the Good Practice Guidance on Dealing with FDR Appointments.

11.6 The client should be forewarned if limited facilities at the court will make private discussions difficult.

11.7 Since 27 April 2009 the media has been allowed access to the courts in certain circumstances and so the client should be warned of this possibility and consideration should be given to whether to make an application to exclude the media. There are still restrictions on what the media can report. Please see the Resolution website www.resolution.org.uk for guidance on this.

11.8 Clients need to be totally conversant with their case and the lawyer should ensure that the client has copies of all documents and understands the paperwork involved. If there is a bundle of court documents, it may be helpful for the client to have a court bundle so that they are familiar with the documents prior to the hearing.

11.9 If a barrister is instructed to represent the client at a hearing, the client needs to be informed why the lawyer recommends that barrister, and why it is appropriate to involve one. If appropriate, bearing in mind the cost of barristers, it can be helpful for the client to meet and have a conference with the barrister prior to the court hearing. This assists the barrister in getting to know the client, obtaining additional information and assessing the client’s ability to give evidence. It also gives clients an opportunity to discuss their case and to hear the barrister’s views prior to the hearing.

11.10 It is helpful for clients to understand the role of the lawyer and the role of the barrister within proceedings. This should be explained carefully to clients and, if necessary, confirmed in writing when they are informed who will be representing them at court. It is also good practice to obtain the client’s approval of an estimate of the barrister’s fees before they are incurred. This helps to avoid any dispute as to costs at a future date. Remember that the barrister’s fees are the lawyer’s liability. With private paying clients, it is prudent to obtain payment on account of the barrister’s fees. With publicly funded cases, ensure that the funding covers this expense and that the case can proceed within the limitation of costs. If it cannot, then an extension of the costs limitation must be applied for in good time. See further the Good Practice Guidance on Working with the Bar.

11.11 The client should be informed that there will be an opportunity to negotiate with the other party through their legal representative at court prior to the hearing. Clients should be forewarned about the possibility of settlement occurring at the court door. It should be explained to the client that such a settlement endorsed in a court order becomes a binding and enforceable order. Furthermore, they should be made aware that heads of agreement reached between the parties by way of settlement are likely to constitute a binding and enforceable agreement.

Guides to Good Practice 11 11.12 If the lawyer who has had the conduct of the case will not be attending the hearing, then this should be explained to the client and they should be introduced to the firm’s representative who will be attending the hearing. Occasionally, it will only be necessary for the barrister representing the client to be present at the hearing, as the lawyer’s costs may not be justified. This is particularly relevant in publicly funded cases. This should be discussed carefully with the client, and the client should feel comfortable with this arrangement. The barrister should also be informed.

11.13 If a lawyer has more than one case being heard at court on the same day, it is courteous to forewarn the client and explain how their case will be conducted. The lawyer should ensure that they can provide the client with appropriate support during any pre-hearing negotiations at court and at the hearing.

12. The hearing

12.1 The client should be introduced to the barrister, and helped to feel at ease with them. If possible, a room should be obtained so that the barrister can discuss the case in private with the client.

12.2 If negotiations with the other party take place, then it is important for the client to understand what is being discussed and not to feel pressurised into reaching an agreement. A careful note should be made of all such negotiations. The lawyer’s role in these negotiations is very important, as they should have established a working relationship with the client and have a clear understanding of the dynamics of the case.

12.3 If a settlement is achieved, it is necessary to explain to the client the meaning of a consent order, and the lawyer and barrister should go through the actual draft consent order with the client, before the order is put before the court. The lawyer should ensure that all relevant issues are dealt with in the draft order, even if it is drafted by the barrister.

12.4 If the hearing proceeds, the client should be provided with writing materials so that instructions can be passed to the barrister or the lawyer in court. They should be advised to avoid interrupting the barrister or commenting during the proceedings.

12.5 The client should be warned in advance that, if they are part way through giving their evidence and the court is adjourned, they cannot discuss the case with anyone, including their lawyer and the barrister.

12.6 If judgment is given, it is important that time is spent with the client afterwards explaining it and, if necessary, explaining the reasons given by the judge in reaching that decision. It may also be necessary to consider an appeal.

12.7 The client must be notified in writing of the terms of the court order and, if appropriate, the timescale for implementation of an appeal. The lawyer should consider sending to the client a copy of the note taken of the judge’s summing up, to help the client understand the judge’s reasoning. The client must be supplied with a sealed copy of the order.

12 Guides to Good Practice 13. Confidentiality

13.1 The duty of confidentiality is fundamental to the relationship of lawyer and client. The client will need to be assured that their case will be treated confidentially, but, at the same time, they must also be made aware that they must be honest and open with the information they provide. The client must also realise that the lawyer cannot withhold relevant information from the other party or the court. The client will need to be informed that, in following the instructions of the client, the lawyer has a duty not to mislead the court by any act or omission. If appropriate, the client needs to be advised that:

(a) Information they wish to conceal usually comes to light in the course of proceedings, and it could be very detrimental to their case to have to make disclosure only when the information is discovered.

(b) The lawyer cannot work towards settling issues unless all the relevant information is disclosed.

(c) There are penalties for non-disclosure including the risk of an adverse costs order being made against the client. (See the Guide to Good Practice on Disclosure in Financial Order Applications).

(d) Trust is a vital element of resolving a dispute in a constructive and conciliatory way, and any trust will be destroyed if non-disclosure comes to light.

The lawyer must also consider the risk of being personally criticised by the court for concealment of relevant information by the client, which was known to the lawyer. In certain circumstances, the lawyer must consider whether it would be appropriate to continue acting for the client.

13.2 In cases involving children, a lawyer may have to consider disclosing confidential information to an appropriate authority if a child is at risk of significant harm. The lawyer must consider whether the child’s life or health, both mental and physical, is at risk of significant harm such as to justify a breach of the duty of confidentiality to the client.

13.3 It must be borne in mind that the Money Laundering Regulations and Proceeds of Crime Act 2002 may override the duty of confidentiality in certain circumstances.

13.4 Where a lawyer is uncertain about the application of the exceptions to the rule of confidentiality in a particular circumstance, they should consider contacting the Professional Ethics helpline of the Solicitors Regulation Authority for advice before deciding how to act.

14. End of the case

The lawyer should ensure that the client has all the information that they will require for future reference and the client must be informed how long their file of papers will be kept by their lawyer. All original documents should be returned to the client.

Guides to Good Practice 13 15. Client terminating instructions of lawyer

If there are fees outstanding, the lawyer is normally entitled to retain the client’s file of papers until those costs are paid. In respect of a publicly funded client, on receiving notification that the public funding has been transferred into another lawyer’s name, the lawyer is required to send the client’s file of papers to that lawyer, and the newly instructed lawyer should be required, before transfer of the papers, to undertake to include the previous lawyer’s costs in the assessment of costs at the end of the case. Please also refer to the Solicitors’ Code of Conduct.

16. Lawyer terminating retainer with the client

16.1 Instructions should be terminated if a conflict of interest arises at any stage.

16.2 If the client requires the lawyer to act unprofessionally or illegally, then the lawyer must terminate the retainer.

16.3 Lawyers should never place themselves in a position which would in any way compromise their professional reputation or threaten their safety, and if such a case arose should terminate the retainer immediately.

16.4 Where the client insists, against all advice given, on the case being conducted in a manner that could result in an adverse costs order against the client, the lawyer should encourage the client to assess the merits of continuing with the instruction. However, the lawyer must keep in mind guidance provided by CKFT v Minkin as regards terminating the retainer. It may not be for the lawyer to take this step and they may risk being found to have repudiated the contract with the client. Professional guidance should be sought.

In particular, it may not be acceptable for the solicitor to threaten to terminate the retainer, for example where payments on account of costs have not been made and where such refusals are justified, for example because they are in excess of costs estimates.

16.5 Obviously an application to come off the court record is necessary if there are ongoing court proceedings and the client refuses to sign an application to act in person. Also remember only to serve your application to come off the court record on the client and not the other party.

17. Family lawyers and personal relationships with clients

17.1 The Solicitors’ Code of Conduct does not preclude personal relationships between solicitors and clients. However, given the vulnerability of clients and the nature of the relationship between lawyer and client, the solicitor should be careful to ensure that they do not cross the boundary into commencing what might be regarded as a personal (non-professional) relationship with the client. Questions should always be raised as regards whether a client is capable of making decisions about a new relationship when they are looking to manage the end of another one. The solicitor will always be at particular risk of having exploited a position of trust.

14 Guides to Good Practice 17.2 Family lawyers should not have a sexual relationship with their clients. If such a relationship exists or develops during the course of the lawyer’s retainer then the lawyer should immediately explain to the client that they can no longer act and, on the client’s instructions, either transfer the case over to a colleague and have no further involvement in the case, or cease to act and allow the client to instruct another firm.

17.3 If the relationship between lawyer and client becomes intimate but non-sexual during the course of the retainer, the question arises whether the lawyer can maintain their objectivity and continue to act in the client’s best interests. If the professional relationship with the client is or is likely to be affected to the detriment of the client, the lawyer should cease to act personally.

17.4 If the lawyer and client are relatives, close friends or their children are close friends, the lawyer should consider whether they can maintain their professional objectivity.

Guidance should be sought of the lawyer’s professional body or use be made of Resolution’s mentoring service, accessible through the website.

Note 1. This good practice guidance does not and cannot affect any obligations in law, specific court orders or rules of professional conduct.

2. Good practice guidance can inevitably only deal with the generality of situations. It cannot be an absolute rule. The facts of any particular case may justify and/or require a lawyer to depart from these guidelines.

3. This guidance applies to all family law cases for the better conduct and approach of family breakdown issues and not just to cases between Resolution members.

Guides to Good Practice 15 16 Guides to Good Practice Guide to Good Practice on Correspondence

‘The pen is mightier than the sword’

George Bernard Shaw

1. Introduction

Family lawyers should approach letter writing by not only looking to avoid bad practice, but also by seeking ways to enhance the prospects of a successful problem solving process. Always try to use the couple’s names, eg ‘Mr and Mrs Smith’ or ‘Stephen and Ann’ and not refer to them as ‘my client’ and ‘your client’.

There can be a significant improvement in the conduct of family law work through correspondence by considering the impact of the content of the letters on the recipient. This guide shows what an important role the family lawyer can play in ensuring that the matter is conducted in the most constructive way possible. The use of emotive and inflammatory language in correspondence does little other than antagonise the other person and can further damage the relationship. This can be particularly detrimental and damaging to the family when there are children.

Every case is different and some are, unfortunately, very bitter and highly contentious. However, by following the guidelines set out here, even the seemingly most intractable cases can be dealt with in a civilized manner and with integrity by the lawyers and the clients.

Lawyers’ correspondence is often the main method of communication used in a family matter. With fewer cases proceeding to trial and indeed to court, it is within the correspondence that points of principle are made, merits are argued and issues are addressed. Therefore the correspondence has the potential to take on the full intensity of the dispute between the parties. It is for this reason that it is important that family lawyers consider and adhere to the Resolution Code of Practice in order to avoid inflaming what may already be a highly emotional situation.

Drafted well, lawyers’ correspondence can reduce conflict, help to resolve the issues and arrive at an early settlement. Drafted badly, it can prolong the case, heighten the temperature, increase the costs and generally diminish the chances of a sensible settlement being reached.

The criticisms and shortcomings of lawyers’ correspondence are extensive and many of the complaints made to Resolution are received from clients who are aggrieved by the content of correspondence written either by their own lawyer or by the lawyer acting for the other party.

It is hard to achieve the perfect letter but it is hoped that with proper consideration of what is written, lawyers’ correspondence can help improve the relationship between parties and increase the likelihood of their reaching an agreement.

This Good Practice Guide deals with a number of general issues and then provides specific guidance on content and style within correspondence. Although the examples may seem extreme when read here, we have all come across such examples in practice.

In order to comply with the Resolution Code of Practice a member should ensure that correspondence:

Guides to Good Practice 17 • is constructive, informative and effective;

• does not use inflammatory or emotive language;

• does not use ‘clever’ writing and complicated language to put forward the writer’s views.

2. Resolution’s Code of Practice

Members of Resolution are required to follow the Code of Practice which is set out at the start of this book.

3. Planning for a court hearing

Lawyers should remember that if the case does not settle, their correspondence may be put before the court.

It is good practice to always respond to correspondence in a courteous manner, even if the letter to which you are replying is contentious and inflammatory. Engaging in contentious correspondence is likely to inflame the matter further and will not be helpful or beneficial to your client if read by the court.

The adverse impact of correspondence on a case is apparent in F v F [1996] 1 FLR 833 in which Holman J condemned the first letter written on behalf of the husband, which set the tone for all that followed in a very adversarial case. He also commended the wife’s solicitor’s initial letter, which he quoted approvingly in full in his judgment.

In extreme cases and where the content of correspondence is deemed by the court to be unreasonably hostile and inflammatory, costs orders can be sought on the basis of litigation misconduct and made against the offending party or lawyer. This is especially so if the correspondence had an adverse effect eg a polarisation of the parties, or simply made settlement much less likely.

4. Faxes and emails

Some lawyers routinely send letters by fax or email. However, they should not expect the other lawyer to respond in a similar way. The manner of communication of each letter should be considered separately.

The speed of fax or email can often result in a lawyer’s letter being overtaken or quickly superseded by a later one. When receiving a fax or email, a family lawyer should consider whether an immediate reply is appropriate. If there is a flurry of faxes or emails, it may be better to wait and to reply to a group of letters at one time.

On occasion, it is appropriate to confine issues to separate letters, eg children and financial matters (see 8.10 below). However, where a case demands frequent letters, by fax or email, on different issues, it is important to ensure that the correspondence remains a tool of settlement, rather than an armament of battle. Certainly, correspondence should not be written in a way that could be interpreted as bullying or intimidating and the lawyer should ensure that the different issues do not become blurred or confused.

18 Guides to Good Practice Letters are considered in draft as hard copies but the same generally does not apply to emails. Their transmission can be more spontaneous and instantaneous, and a hastily drafted reply cannot be retrieved later. Email has many benefits, but lawyers should remain aware of its dangers and should give proper consideration to what is being said before the email is sent.

Caution should also be exercised when sending draft documents by email. All changes to draft documents should be tracked so that subsequent changes are clear. It is also important to check documents very carefully if changes are made through tracked changes via email to make sure that all changes are up to date.

If a document is being emailed to anyone other than the client, care should be taken to ensure that past changes to a draft document cannot be viewed by the recipient.

As a general rule, all email correspondence, save generally that sent to a client, should be sent in PDF format so that the correspondence cannot be tampered with. In certain circumstances, email correspondence to a client should also be sent as a PDF, for example an important letter of advice.

5. Aims and priorities in correspondence

When drafting correspondence, a family lawyer should bear in mind that the aim of the correspondence should be to:

• address and safeguard children’s needs;

• give or obtain reasonable disclosure;

• identify and resolve issues;

• advance the proceedings; and/or

• record issues of conduct or fact if it would be material to the court if there were a final hearing.

It is important to ensure that letters are not written unless they serve a constructive purpose in moving the matter forward and that they take into account the interests of the client and the family as whole. Letters should not be written for the following purposes:

• satisfying the client’s feelings;

• satisfying the lawyer’s own feelings;

• creating or perpetuating conflict between family members; or

• attacking the other lawyer.

6. Timing of correspondence

The timing of correspondence to the other person should be considered before sending letters or documents. This should be discussed with your client if it relates to particularly sensitive issues or matters that can impact on the family, for example if children are taking exams or a birthday or

Guides to Good Practice 19 anniversary is coming up. Correspondence sent at the wrong time or without notice may be hurtful or unnecessarily upsetting and could hinder the constructive and conciliatory progress of the matter.

If the content of a lawyer’s letter is likely to cause distress to the other person, for example a letter serving divorce or civil partnership proceedings, then the lawyer should discuss with their client when it would be best to send the letter. For example, it should be delayed until after a holiday period or sent at a time when the children are not with the other parent. See further the Good Practice Guide on Service of Documents.

7. Effect of letters

The client is better placed than the lawyer to know how the other person will react to the content of a letter. Therefore it is recommended that draft letters should be sent to your client for consideration and approval before they are sent to the other person or their lawyer. Not only will this ensure that the lawyer has the client’s authority to send the letter, but also it will enable the client to point out anything which might be misinterpreted or misconstrued by the other person so that the letter can be amended before it is sent.

The lawyer should always consider what impact the correspondence will have on the recipient and must comply with the Code of Practice by ensuring that the letter is not inflammatory or hostile. Correspondence should be carefully considered for its potential effect on other family members as well.

There are now a large number of people who choose not to be represented and therefore correspondence will be going direct to the other person. See the Guide to Good Practice on Dealing with Litigants in Person for tips on how to deal with such correspondence.

8. Examples of bad practice

The following paragraphs set out examples where poor correspondence can arise and the potential effect of that correspondence:

8.1 Underlining of words or phrases or marking in bold

‘Your client must respond to our client’s questionnaire within 7 days failing which she will issue an application and seek costs against your client.’

This is aggressive and appears rather hysterical. The marked words are read as if the writer is barking commands and tends to detract from other parts of the letter, which might be overlooked as a consequence.

It would be better to phrase it like this:

‘We should be grateful if Mr Smith would provide a reply to the questionnaire within 7 days failing which we will have no option but to issue an application as the reply is now 28 days overdue. It is hoped that this will not be necessary but in the event of an application having to be made an order for costs will be requested.’

20 Guides to Good Practice Consideration should also be given as to whether a deadline can be avoided altogether, at least initially. Implying that someone is going to breach a deadline usually heightens emotions and may actually make progress in the case harder to achieve.

8.2 Use of ‘inverted commas’ for direct speech or allegations

‘Your client’s ‘change of circumstances’ needs to be verified before our client can consider any variation to the rate of her maintenance.’

This immediately suggests that the writer doubts that the change of circumstances is genuine, which may indeed be the case, but it has a similar effect to the use of the word ‘alleged’, which suggests suspicion. Although these suspicions may be well founded, inverted commas are likely to do little other than antagonise the other person.

It could be better put like this:

‘We await details of Mrs Smith’s new financial circumstances. We will then discuss the request for a change in the maintenance with Mr Smith.’

8.3 Use of language denoting hostility, battle or victory

‘Smith v Smith’ (as heading of letter)

‘We will seek an order that your client is condemned in costs.’

‘As our client won at court last week....’

These examples seem hostile and confrontational and suggest that there are opposing sides involved in a fight. The lawyer should encourage the search for fair solutions and discourage the attitude that a family dispute is a contest in which there are winners and losers.

8.4 Personalisation or over-involvement of lawyer

‘We think the way you are conducting the case against our client is threatening and intimidating and you must stop it.’

Using such phrases as ‘we think’ or ‘you are’ personalises the matter and suggests that the writer is giving their own personal opinion, as opposed to their client’s view. It also treats the lawyer receiving the letter as if they were the other party. It can also make the other client feel that they are taking on both their former partner and lawyer.

If it is felt that the other lawyer’s correspondence is inappropriate, often a telephone call to them to discuss the case can help without having to criticise their correspondence. If there is a better understanding of your client’s position it can take the heat out of the situation.

If the lawyer is a Resolution lawyer, a tactful call to point out that their letter isn’t in accordance with the Code of Conduct may resolve the problem. If it doesn’t, consideration will have to be given to reporting the lawyer to Resolution.

If the other person is unrepresented it is best to ignore any aggressive tone in the correspondence and

Guides to Good Practice 21 appraise your client of the information that is relevant to the issues without forwarding copies of the letters.

8.5 Comments written purely to satisfy clients

‘Substantial tax debts appear to have arisen because your client, who was controlling his own finances, became a spend thrift, wasting a small fortune on cars to his benefit exclusively and ignoring his responsibilities to our client. The offer to pay £1,000 per month for a period of one year is manifestly useless. Your client would undoubtedly default and the offer of payment in this fashion would not be worth the paper on which it was written.’

The inevitable result of a letter like this is mud-slinging and should be avoided at all cost. The use of such language is not constructive, it is confrontational and antagonistic. It is likely to increase or create conflict rather than reduce it.

The lawyer should take the ‘rant and rave’ out of their client’s view of the situation and present it in a calm and reasoned manner.

Writing letters purely to satisfy the client is an issue the lawyer must first resolve with the client before engaging in correspondence. If the client is insistent that letters be written in this vein, then it is the duty of a good and competent lawyer to explain why that approach should not be adopted and if the client refuses to take the lawyer’s advice and insists on such letters being written, then there is a problem in the lawyer/client relationship, which needs to be addressed.

The negative effects, both short and long term, should be explained so that the client can understand that it is likely to impact not only on the parties personally but also on the conduct and progress of the case. The client should also be advised to avoid bringing the emotional elements of the breakdown of the relationship into the correspondence, and the lawyer should encourage them to deal with these elements elsewhere, such as in counseling.

Often, one of the lawyer’s most difficult and time-consuming tasks in enabling a client to reach a sensible agreement is helping the client come to terms with the situation and to accept that there is no need for such letters to be written. Sometimes the understanding and co-operation of the other lawyer is needed, but if this is unavailable because the other lawyer is not taking the same stance with their client, then the lawyer still needs to ensure that their client adheres to the Code of Practice.

8.6 Questioning professionalism

‘We note the absurd line you take in the ultimate paragraph of your letter. It appears to us that you are gearing this case to the most expensive form of litigation that you can conceive.’

The intention of comments such as these is to try to encourage the other party to lose confidence in their lawyer. This is unprofessional and unhelpful and does not encourage the parties to adopt a conciliatory approach and work towards an agreement. It suggests that the recipient lawyer intends doing whatever possible to maximise costs in the case and has no real concern for their client.

A better way will be to say:

‘We do not agree with the approach set out in your last paragraph, which we are concerned may increase costs unnecessarily.’

22 Guides to Good Practice 8.7 Questioning expertise

‘Indeed, there was no need for the document to have been sent to us in the first place. We put this down to the inexperience and excessive emotional involvement of the person dealing with the matter.’

This is patronising, hostile and inflammatory and is likely to jeopardise any working relationship that the lawyers may have and which otherwise might assist the parties in reaching a settlement. It would be better to simply acknowledge receipt of the letter and say nothing further.

8.8 Acting as a postbox

‘We can do no better than to send a copy of our client’s letter to us in which he/she responds to your letter of ….’

‘Our client replies to your letter as follows: 1. I think ….’

The client’s letter and/or direct instructions are likely to be emotive and adversarial and therefore, save in exceptional circumstances, should not be sent to the other party. Invariably it is laziness on the part of the lawyer, who does not want to edit it and instead wants the client to see that their views are being promoted.

Lawyers should not allow themselves to be placed in the position of passing direct comments between their own client and the other person. If the client wishes to be represented by a lawyer, the letter should come from the lawyer. By way of good practice, the lawyer should draft the letter, taking into account the instructions, comments and views of the client but ensuring that it does not contain any emotive language or unnecessary or adversarial comment.

Some lawyers send copies of correspondence with the other lawyer to the client simply with a compliment slip. It keeps the client up to date with developments quickly and keeps costs down. It is preferable to include a covering letter providing an overview and advice about the way forward, or to inform the client of the substance of the letter without sending a copy. Otherwise, the client may misinterpret the mildly assertive letter from the other solicitor as a declaration of war, misunderstand the terms referred to, or become confused as to what is expected of them. If you do consider sending a copy with a compliment slip, make sure that there is nothing in the letter that the client may find upsetting or which requires any explanation.

8.9 Mentioning children and financial matters in the same letter

‘My client is not going to allow your client to see the children until he starts paying maintenance.’

The issues and merits of disputes regarding children and finance are often totally separate. Children should not be used as bargaining tools. However, many clients view it as reasonable to negotiate arrangements concerning the children with the financial settlement. This is rarely in the child’s best interests.

Combining the issues in the same letter blurs that distinction and can lead to an overflow of contentiousness on one aspect into another and make both issues more difficult to settle. It also wrongly conveys to clients that the two issues are linked and may be viewed by the client as an acceptable way in which to deal with matters, when it is not.

Guides to Good Practice 23 Where there are real issues or disputes, it is good practice to write separate letters, one dealing specifically with the children and the other with finances, the divorce or civil partnership proceedings etc. The reasons for this should be explained to the client so that the cost of separate letters does not become an issue.

8.10 Mixing open and privileged correspondence in the same letter

The effect of combining the issues in both open and privileged letters is that it can sometimes be unclear which parts are open and which privileged. It also makes it immensely difficult when preparing copies for bundles. So it is good practice to ensure that privileged matters are dealt with in separate letters.

Privileged correspondence should never be responded to or its existence even referred to in open correspondence.

8.11 Misusing privilege

Privileged correspondence between parties is a resource aimed at helping achieve a settlement and should be fully utilised by lawyers on behalf of clients. However, it must be correctly used. For example, adding the words ‘without prejudice’ does not automatically make a letter privileged. Factual matters of disclosure, or on which the other party may wish to rely in coming to a decision or view, should not be deemed privileged and should be set out in open correspondence.

See Resolution’s Guide to Good Practice on Disclosure in Financial Order Applications for more on the proper use of privilege in family law work.

8.12 Informing a client of disappointing information

‘Your application, which was heard on Monday, did not succeed.’

Unless the client is expecting the information, it is far better to inform the client personally either face to face or over the telephone. The information can be put into context, the client’s reaction controlled and the way forward discussed. It also encourages the client to discuss any issues of concern with the lawyer, instead of complaining to anyone who will listen or instructing another lawyer. Of course, the client should have been kept as well informed as possible and their expectations managed, so there should be few surprises.

The lawyer should also not use words such as ‘lost’ and should remind clients that a family dispute is not a contest and that there are no winners or losers.

8.13 Information about costs

‘I attach my bill of costs for my work throughout the case for your early attention. I anticipate the amount will be a shock for you.’

It almost certainly will be a shock if the lawyer thinks it will be and a bill should never be presented in this way.

The amount of the final bill should not be a surprise: informing a client in advance and during a case about the level of billing is not only good practice, but is made mandatory by Outcome 1.13 of the

24 Guides to Good Practice SRA Code of Practice, which provides that clients should receive the best possible information, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of their matter. This means providing them with details of charging rates and, ideally, an estimate of the likely cost implications of proceeding with a matter at the start of a case. All costs information should be provided in writing and should be updated from time to time as the case progresses.

Of course, the final cost of a family dispute is always impossible to predict and so at the outset of a case the client should ideally be given a range of costs within which their case is likely to fall. The estimate must be updated as the case progresses. The client should be billed on a regular interim basis with frequent requests for money on account. Where a different course of action is proposed that was not envisaged at the start of the case, the client should be given a new estimate of the cost of proceeding with that action so that they can make an informed decision as to whether or not to do so.

Where estimates of costs are required by the court, these should be shown to the client in advance of the hearing.

A lawyer must also make the client aware of the risk of adverse costs orders, and the benefits of taking any step must be balanced against the likely costs. A costs/risks/benefit analysis should be carried out at regular intervals and with any new or different instructions.

8.14 Using jargon

‘I attach hereto copy letter dated 5th ultimo received from the Petitioner’s solicitor setting out proposals for settlement prior to the FDR. I await your instructions thereon at your early convenience.’

The client may be confused by the wording and uncertain about whether they can expect advice from the lawyer. Legal jargon should be avoided and plain English preferred. If legal terminology needs to be used, its meaning should be explained.

9. Examples of good practice

The following are some limited examples of good practice aimed at creating a constructive environment.

9.1 Initial letter

‘We have been instructed by your husband and he tells us that sadly your marriage has broken down. Stephen has asked for our help and advice in resolving the arrangements arising from your separation.

Stephen is keen that all the arrangements are dealt with as amicably as possible and we are members of Resolution. Resolution is a national family law association and all members follow a code of conduct. We recommend that you visit the Resolution website at www.resolution.org.uk to obtain more information. We recommend that you speak to a solicitor yourself and all the local lawyers who are members are listed on the website.

We look forward to working with you or your solicitor to resolve all the arrangements between you as quickly and as fairly as possible.’

Guides to Good Practice 25 9.2 Raising the possibility of divorce proceedings

‘Ann tells me that neither of you alone is responsible for your marriage breakdown but she does feel that it is irreversible. The law relating to divorce does not permit a no-fault divorce until a period of at least 2 years has expired since you stopped living together. In order to obtain a divorce sooner couples have to rely on the fault-based facts of adultery and unreasonable behaviour. Ann tells me that neither of you have formed a new relationship so the purpose of this letter is to ask whether you would be prepared to consider co- operating with a petition based on details of behaviour. You can be assured that the reason for the breakdown of the marriage has no bearing on either the financial arrangements nor on the arrangements which will be made with regard to the children. We will let you have a draft of the divorce petition so that, if possible, this can be dealt with by way of agreement.

Ann would like both of you to retain your dignity throughout the divorce and the information about alleged behaviour will be as mild and uncontentious as possible.’

9.3 Starting financial proceedings

‘We have, on Stephen’s behalf, issued a financial application through the Court. The purpose of doing so is solely in order to have a timetable and framework within which a settlement can hopefully be achieved. The application, which is called Form A, and the initial timetable from the Court is enclosed for your information. ‘

9.4 Enquiry about contact arrangements

‘Ann recognises that it is important for the children to see Robert as much as possible and would welcome his proposals for the arrangements.’

9.5 Non-payment of maintenance

‘Ann tells us that the since the separation, the financial provision made by Robert has been irregular, which has made it difficult for her to budget and placed her in financial difficulties. It would be helpful if he would put forward proposals for regular payments that would provide her with some security during this period.’

Note 1. This good practice guidance does not and cannot affect any obligations in law, specific court orders or rules of professional conduct.

3. This guidance applies to all family law cases for the better conduct and approach of family breakdown issues, and not just to cases between Resolution’s members.

26 Guides to Good Practice Guide to Good Practice on the Service of Documents

1. Introduction

Service of documents is a particularly sensitive area. It is sometimes essential that documents are served upon the other party personally, but this could inflame the situation and be counter-productive to the aims and ethos of the Resolution Code of Practice.

This guide looks at these issues and ways in which service of documents can be achieved in a constructive way to avoid increasing the acrimony between the parties.

2. Timing

2.1 Service of documents should take place as soon after issue of the application or order as is possible and reasonable.

Delaying service until nearer the hearing date and therefore giving the recipient less time to prepare or seek legal advice is bad practice unless it can be justified with a good reason, such as a strong likelihood of settling the matter without the hearing, or other proceedings or action.

2.2 Personal service at a weekend or just before a national holiday or religious festival should be avoided unless it is absolutely necessary.

This not only prevents the recipient from getting legal advice upon receipt of the papers but may also increase their anxiety and anger about the application because they are unable to discuss it rationally with their lawyer straight away.

If deadlines for responses have to be given then adequate time for obtaining legal advice, information or copy documents should be allowed between the date of service and the deadline. If there is a delay between a letter being dictated and it being sent out then any deadline should be adjusted accordingly.

2.3 The client should be asked if they are aware of any times when it would be insensitive to serve the documents, such as birthdays or anniversaries, examinations, stressful hospital appointments or when there has been a close family bereavement. Efforts should be made to avoid any such sensitive times for service.

2.4 Service of documents should not take place at the time of the recipient’s contact with the children, or at any time when the children are in the vicinity, unless there is no reasonable prospect of service at any other time.

It will be upsetting and bewildering for the children and they may witness an emotional outburst from their parent. This may also lead to further anger and resentment from the recipient and will heighten the tension and the level of dispute.

Guides to Good Practice 27 2.5 If the parties are engaged in a non-court based process such as mediation or collaborative law, the question of service of the divorce petition may be addressed within that setting and, if agreed, service may be effected at one of the meetings.

3. Prior warning

3.1 If the other party has instructed a solicitor, most applications and orders can be served upon their legal representative. If they are on the court record as representing the other party they should always be served with the papers. If not, they may still be willing to accept these if their client agrees, and so you should always check.

Service through the DX system or by fax may be acceptable. The rules are set out in Practice Directions 6A to the Family Procedure Rules 2010.

It is good practice to send a letter before issuing the proceedings to warn the other party and their lawyer of the application being made.

3.2 If the other party is unrepresented, it is also good practice to write to them forewarning them of the application being made and recommending that they see a lawyer. Unless informing them of the need for personal service is likely to be counter-productive, the fact that the papers have to be handed to them personally can be explained together with the fact that their lawyer may be able to accept the papers on their behalf. Alternatively, they can be asked if they will be willing to meet with you or with the process server so that the papers can be handed to them.

3.3 It may not always be appropriate to give forewarning of service of the documents if they have to be personally served on the other party. This might be because of the risk of evading service, the risk of violence, because there are proceedings in another jurisdiction which might be prejudiced, or because injunctive relief is sought or other without notice application is being made.

4. Use of process servers

4.1 Choose a reputable enquiry agent or process server. You can check whether they belong to a professional association via the internet and should check what assurances they offer regarding sensitivity.

4.2 It is good practice to ensure that the enquiry agent or process server is aware of the sensitivities of service of documents in family proceedings. Most experienced ones are, but if instructing a new enquiry agent or process server, consider providing them with a copy of this Good Practice Guide.

4.3 The lawyer should discuss with the client the most appropriate time and place for service and the process server should be notified of this, rather than leaving it to their discretion.

4.4 The process server should be warned of any likelihood of violence from the recipient or whether they may try to evade service.

28 Guides to Good Practice 4.5 The process server should be provided with a recent photograph of the recipient, their mobile telephone number and the make and registration number of their vehicle, if applicable.

4.6 The process server should be given a covering letter addressed to the recipient to list the documents being served, and state the urgency and the importance of taking legal advice. The letter should also incorporate, word for word, the warning from the court order of being in contempt of court. Care needs to be taken when drafting this letter to get the tone correct and ensure that there is no misrepresentation of the effect or the content of the orders.

4.7 It is good practice to provide the client’s telephone number to the process server, if the client agrees, so that they can be notified when service has taken place, if it is outside office hours.

4.8 You should make clear to the process server what proof of service you require so that there is no danger of the court being dissatisfied about service and causing your client cost, delay and inconvenience or even exposure to danger.

4.9 Family members should not be used to effect service of documents except in very exceptional circumstances. One party to family proceedings should not serve another party.

5. Venue for service

5.1 The impact of the venue for service can have repercussions on the rest of the case and on family relationships generally, so should be considered with care. Effecting service at a place of employment, at a social gathering or at a religious meeting place could cause embarrassment or offence and so should be avoided if possible. If this is necessary service should be as discreet as possible.

5.2 The process server should be encouraged to call the recipient on their mobile phone number and ask to meet unless this is likely to give the recipient the chance to evade service.

6. After service

6.1 If the recipient is legally represented it is good practice to send a copy of all the papers to their lawyer immediately after service has been effected if it was not appropriate to send them before. These should be sent by the quickest means possible so that the lawyer can properly advise their client about the contents, to avoid misunderstandings and inappropriate responses.

6.2 When serving a non-molestation order it is good practice to lodge not only a copy of the order with the police station but also a copy of the application and the statement in support. If there is any breach of the order, the police will have background information and will not treat the incident breaching the order in isolation of everything else that may have occurred.

Note 1. This is good practice guidance and does not and cannot affect any obligations in law, specific court orders or rules of professional practice.

2. Good practice guidance can only deal with the generality of the situations and is not an

Guides to Good Practice 29 absolute rule. The special facts of a case may require and/or justify departing from these guidelines.

3. This guidance applies to all family law cases for the better conduct and approach to resolving family breakdown issues and not just to cases between Resolution members.

4. This guidance is endorsed by the two leading associations of private investigators, the Association of British Investigators (www.theabi.org.uk) and the Institute of Professional Investigators (www.ipi.org.uk).

30 Guides to Good Practice Guide to Good Practice on Discussing Dispute Resolution Options

When you meet a client for the first time one of the things you will usually talk about is the various ways that people can divorce or separate, and resolve their issues regarding children and money. Often these different issues are resolved by different processes. People generally need more help resolving issues regarding money than those involving children, but this should not be taken for granted. It is important to explore with the client which choice may be appropriate for each of the issues that need resolving.

In summary the choices are:

• kitchen table;

• facilitated discussion with friend or family member;

• mediation with a neutral professional;

• collaborative law;

• round table meetings;

• arm’s length negotiations;

• litigation up to FDR;

• arbitration;

• litigation to final hearing.

Each of these choices has advantages and disadvantages.

It is tempting to steer clients towards the options which make most use lawyers but if we are to really offer a good service to clients we should allow them to make the choice, albeit with input from us. Each client should be helped to make an informed choice about the appropriate forum for them and their family in the circumstances, so it is important to spend time really getting to know the client and finding out what their concerns are, what they are anxious about, what they want to avoid, and what are their aspirations for their family for the future. This level of deep questioning will make it easier for the client to then choose the process option most likely to deliver the protections and the outcome they desire. Deep questioning is covered in more detail in the next section.

Particularly in recessionary times, we act to our detriment – and to the detriment of our clients – if we don’t offer them a comprehensive range of process options, and it is imperative that we set aside our personal preferences in the choice selection. Be prepared to pass the client on to a colleague if you do not feel able adequately to deliver to the client the process option they select.

Guides to Good Practice 31 1. How to enable the client to make an informed choice

Questions are a vital tool in our toolbox and like any other tool take practice to use effectively, creatively and comfortably. You need to find out the answers. The answers help you and the client steer a path through the turbulent waters of relationship breakdown. If all your clients are steered along the same path it will not be very surprising if you encounter a fair degree of client dissatisfaction along the way. Your clients are unique individuals and they should be treated as such.

Separation is a painful and messy business but as family lawyers we have it within us to work with clients in a way which will best address the things that really matter to clients. And we can do this by asking the right questions and listening to the answers, if necessary asking further questions to get the whole picture.

2. What is important to this client?

All our clients are different from all the others. Never forget that. This is often the first time they have told their story to anyone. You have not heard it before, however familiar it sounds. Don’t forget that either.

Before you do anything else, ask a new client about what matters to them. A useful place to start is to ask them to mark out of 10 the following issues that might be of importance to them:

• money;

• security;

• safety;

• their children;

• their ongoing relationship with their former partner/spouse;

• separating with dignity;

• the wider family or social network;

• physical well-being.

And the answers will certainly lead on to other questions and into the things that really matter to this client.

3. Aspirations

This may seem like a strange topic to raise with a client, especially a new one that you have never met before.

When people first go to see a divorce lawyer they are probably quite apprehensive, even if they want to be divorced. They are apprehensive because they are putting their future into the hands of another person whom they have never met before.

Traditionally the lawyer has taken a lot of factual information from the client – name, address, date of birth, names and ages of children, the amount of capital and the level of income etc. They then give

32 Guides to Good Practice advice on the likely outcome in court. And that’s fine for some clients, but increasingly that is not fine for most.

What clients want first and foremost is to be listened to and to be heard. They want what is important to them to be given some regard – in fact, to be given prominence. They want account taken of who they are as individuals and what help their families need.

So the challenge for lawyers is to start a meeting with a new client with an approach that looks at things from the client’s perspective rather than from the lawyer’s pre-determined agenda and anticipated outcomes. This means we must start by finding out who the client really is and what matters to them. Try asking these questions:

In this situation, what is the most important thing for you?

If you were to look back on this time how do you want this process of divorce and separation to have been like for you and for your family as a whole?

If you can look forward to the end of the process what do you want to be able to do with and for yourself and your family when it is over?

And then ask them to answer the same questions from their partner/spouse’s perspective and from their children’s perspective.

The answers are the client’s aspirations and finding these out at an early stage in the relationship can make the difference to how the divorce or separation proceeds. Most people want to be fair. Most people want their children to be as unharmed by the experience as possible. Most people want to be dignified and act with integrity. So it is the job of family lawyers to help the client choose the way for resolving differences that has the greatest likelihood of matching their aspirations.

The starting point with a new client is to find out who they are and what is important to them. It is also worth asking them who their partner/spouse is and what they think is important to them. An essential question to all new clients is ‘How did you resolve conflict with your partner/spouse in the past?’ You are here trying to get clients to think back beyond the troubles that have brought about the end of the relationship to the time when things were ok in their terms.

A client who says ‘We always managed to resolve things even if the discussion got heated’ is a client with whom you might confidently explore DR choices. A client who says ‘I always gave in to him/her for a quiet life’ may be best steered towards a choice where the lawyers are more hands on. This answer does not rule out, for example, the collaborative process but it does mean that the collaborative lawyer will need to be extra careful in their preparation with the client and their collaborative colleague to ensure that the client is not being set up to fail.

Another good question is ‘What do you want to avoid?’ and the even more important follow up question ‘What is important to you about avoiding that?’ Follow up or ‘delving deeper’ questions cannot be underestimated and should not be overlooked. For further useful questions see the box below.

Questions

• How well are you able to trust your partner?

• Where might we have the most difficulty in resolving things?

Guides to Good Practice 33 • How might we manage those things?

• How do you feel about sitting together discussing these issues?

• What thoughts have you had about how to resolve things with your partner?

• What would a successful outcome look like?

• Do you want to be able to decide what happens?

These are the tip of the iceberg. The answers lead to deeper questioning. There is always a danger in taking a client’s answer at face value. There has to be a balance though – we are not suggesting you disbelieve everything they tell you. The most useful questions to ask here are ones like these:

• What is [important/upsetting/pleasing etc] about that?

• What does [the issue/topic] mean to you?

Try to avoid questions asking ‘Why?’ – it is a challenging word and can frequently sound as though the questioner disagrees.

Ultimately of course it is the client’s choice but we can help them choose by explaining clearly the pros and cons of each option, as we see them in the client’s particular circumstances.

4. The risk factors

Of course we also have a duty to find out from our clients if there are any risk factors which should be borne in mind in helping the client choose the right process. You will need to find out if any of the following factors feature in the case:

• domestic violence

• jurisdiction issues

• mental health issues

• drugs or other substance abuse

• interim maintenance issues

• concerns over hidden assets or non-disclosure

• disability or terminal illness.

The presence of one or more of these factors will not automatically rule out all options besides litigation, but they will need to be brought into the decision-making process. You will need to ask questions designed to provide enough information for a reasonable assessment to be made and for your client to make the right choice.

34 Guides to Good Practice 5. Resources

A flow chart of options can be found in the Resolution options leaflet and on the Resolution website http://www.resolution.org.uk/process/

Resolution produces separate leaflets on:

• Mediation

• Collaborative law

• Choosing the right solicitor

• The code of conduct

All of these are available from Resolution head office. It is worth getting a good supply to give to clients with extra copies for their partners.

Resolution thanks Gillian Bishop for writing this good practice guidance.

Guides to Good Practice 35 36 Guides to Good Practice Guide to Good Practice on Mediation

1. Qualifications, training and ongoing professional support 1.1 Publicly funded mediation practice 1.2 Conduct of mediation information and assessment meetings 1.3 Child inclusive mediation: direct consultation with children 1.4 Accreditation 1.5 Professional practice consultancy 2. Scope and principles of mediation 2.1 Impartiality 2.2 Voluntary participation 2.3 Neutrality 2.4 Confidentiality 2.5 Confidentiality and safeguarding 2.6 Confidentiality, privilege and legal proceedings 2.7 Safeguarding and privilege 2.8 The welfare of children 2.9 Abuse and power imbalances within the family 3. Conduct of mediation 3.1 First contacts: assessing suitability and appropriateness 3.2 The importance of screening processes 3.3 First meetings 3.4 Mediation information and assessment meetings 3.5 Safeguarding/screening in the MIAM 3.6 Public funding 3.7 The first mediation meeting 3.8 Establishing financial disclosure 3.9 Arrangements for children 3.10 Developing options 3.11 Preparing to draft documentation 3.12 Drafting and presentation of mediation documents 3.13 Recording 3.14 The memorandum of understanding/outcome statement or summary 3.15 Open financial statement 3.16 Variations – disclosure 3.17 Money laundering, fraud etc 3.18 The effect of Bowman v Fels – mediation 3.19 Payment for mediation documents/concluding the mediation 3.20 Variations – documentation 3.21 Payments on account 3.22 Non-payment 3.23 Ending a mediation process 3.24 Dealing with client concerns and complaints 3.25 Monitoring performance/practice – client feedback 3.26 Relationships between mediators and solicitors 4. Other professional practice considerations 4.1 Co-mediation

Guides to Good Practice 37 4.2 Involving solicitors in a mediation 4.3 General guidance for solicitors supporting clients through a mediation process 4.4 General guidance for solicitors participating or considering participation in a mediation process 4.5 Working with or as part of a collaborative process 4.6 Mediation where there is or has been abusive behaviour in the couple relationship 4.7 Court-referred mediation

The Dispute Resolution Committee of Resolution has drafted the following good practice guide for all Resolution mediators as a means of setting out and encouraging best practice within the mediation community. The guidance sets out an explanation of the principles of mediation and a framework for the conduct of consistent and high quality mediation practice.

1. Qualifications, training and ongoing professional support

All mediators should be aware of and adhere to the training and qualification requirements as set out by Resolution and by the Family Mediation Council (of which Resolution is a member organisation).

Mediators should ensure that they meet continuing professional development (CPD) requirements and have a professional practice consultant (PPC) to support and guide their practice. Information regarding CPD requirements and in relation to PPCs can be found in the DR Documents section of the Resolution website.

1.1 Publicly funded mediation practice

Mediators must hold a family mediation contract if they are to offer publicly funded family mediation and must be accredited/competence assessed to the standard required by the Legal Services Commission/Legal Services Agency. There are only two routes to recognition for delivery of publicly funded mediation: the Family Mediation Council (FMC) Assessment of Professional Competence (APC) scheme and the Law Society’s Practitioner Membership of the Family Mediation Accreditation Panel. Full details and application forms can be downloaded from the FMC and Law Society’s websites.

Mediators who offer publicly funded mediation must also meet all the requirements in regard to qualification, CPD, professional practice consultancy (referred to by the agency as supervision of practice), client service, management and administration, as set out in the Family Mediation Quality Mark Standard (MQM) and contract. All mediators providing publicly funded mediation services must also ensure that they meet the requirements set out by the Legal Services Commission in relation to appropriate administration of their contract, including obtaining all documentary evidence from clients in regard to their eligibility for publicly funded mediation.1

1.2 Conduct of mediation information and assessment meetings

Mediators who carry out MIAMs must be recognised for the conduct of such meetings. Full information in regard to recognition can be found on the FMC’s website.

1 For full information, see www.legalservices.gov.uk/docs/cls_main/MQM_Standard_Sep09_with_cover.pdf.

38 Guides to Good Practice 1.3 Child inclusive mediation: direct consultation with children

Mediators who see children directly as part of a parental mediation process must have completed recognised training and assessment, and their practice must be supervised by a PPC who is trained and qualified as a mediator and PPC for the purposes of direct consultation with children. Additionally, mediators must hold an enhanced CRB check.

1.4 Accreditation

Resolution encourages all mediator members to work towards achieving an accredited standard of practice. With new arrangements for the provision of family law and justice services, all mediators should ensure that they are working towards an accredited standard of practice and are alert to changes in those standards and any additional professional requirements placed upon mediators.

Full details of the requirements for Resolution mediator accreditation can be found on the Resolution website, but please note that Resolution accreditation is a badge of excellence for its member mediators and does not confer recognition to conduct publicly funded mediation.

1.5 Professional practice consultancy

Professional practice consultancy is designed to ensure that mediators have the guidance, support and help of an experienced consultant or supervisor (who is an experienced mediator, trained and recognised to act as a practice consultant).

The PPC’s role is to:

• assist new mediators as they begin their practice (including checking mediation document drafts);

• support mediators in practice (including assisting them to achieve accredited status); and

• to be available to support mediators with issues that may arise in their day-to-day practice (including providing support to any mediator where there has been a client complaint).

Where mediators provide publicly funded mediation, the PPC provides practice supervision to the terms required by the Legal Services Commission in its family mediation contract, which includes review of mediation files. A PPC who undertakes this role must be accredited to the Mediation Quality Mark (MQM) standard required by the Legal Services Commission via the competence or accreditation standard routes offered by the Family Mediation Council and the Law Society.

The Family Mediation Council (of which Resolution is a member) and the Law Society both set requirements for consultancy in their Codes of Practice, which can be downloaded from their websites.

Mediators are required to meet with their PPC on a one-to-one basis and may also accrue their additional required hours by meeting with a PPC as a member of a peer group. A level of consultancy can be provided via telephone/Skype, but mediators should be aware that this cannot be the greater part of their required PPC hours. Many PPCs lead peer groups or arrange with mediators to offer peer group meetings in local areas. The PPC network is still growing and there are shortages in some areas, so some PPCs travel to see mediators some distance from their own home area. PPCs can also nominate CPD points for other learning activities undertaken by their consultees and mediators should check with their PPC before undertaking/booking courses or other activities that they wish to have counted for this purpose.

Guides to Good Practice 39 There is a charge for time spent with a PPC. Rates vary, so mediators should ask what the individual PPC’s rate is when they make contact with them. Many PPCs offer rates which are lower than their usual hourly rate (in any other professional role they have) in order to ensure that they offer an affordable service to mediators. PPCs who travel to consultees generally charge for travel so mediators should check this too if they choose a PPC who is at distance from them.

It is up to mediators to choose and maintain contact with a PPC whom they think best meets their needs. It is important that the relationship between mediator and PPC is good, productive and comfortable, so mediators are encouraged to choose their PPC carefully. PPCs should offer a contract or agreement for the purposes of setting out arrangements for professional support, which should be signed by both mediator and the PPC. If a mediator wishes to change or move on, then their PPC will expect that the mediator will let them know that is their intention and any new PPC chosen by the mediator will want to check that the former PPC has been informed of the mediator’s decision to change.

Mediators need to be aware that they must meet the requirements for time spent annually with their PPC as set out by Resolution from the Codes of Practice of both the FMC and the Law Society. PPCs generally expect to spread the time and support they provide to mediators over the year as a means to properly support the mediator in practice and mediators should discuss with their chosen PPC a schedule for their consultancy over the year.

PPCs are responsible for assessing whether mediators have met all the requirements for recognition to conduct MIAMs, in line with the requirements of the Family Mediation Council. Mediators should therefore take careful note of the requirements as they apply to their individual situation and prepare any required evidence to discuss with their PPC.

PPCs also prepare a ‘witness testimony’ or professional practice development statement, which forms part of the mediator’s accreditation/competence application/portfolio. Mediators should be aware that in order for their PPC to be able to do this, they must have sufficient knowledge of the mediator’s professional development and practice leading up to their application for accreditation/competence assessment.

2. Scope and principles of mediation

Family mediation is a process in which those whose relationship is ending or has ended, regardless of whether they are a couple or other family members, appoint an impartial third person to assist them to communicate better with one another and to reach their own agreed and informed decisions concerning some or all of the issues relating to their separation, divorce, children, finance or property by negotiation. Family mediation may also be appropriate in other family transitions, in respect of other family disputes or, for example, in relation to inheritance planning or disputes.

Family mediation is a principled and structured process of family dispute resolution. In assessing for suitability and in conducting mediation, all mediators should ensure that they fully explain the principles of mediation to prospective clients/clients and make sure that at all times they adhere to those principles in practice.

2.1 Impartiality

The requirements in regard to impartiality and conflicts of interest are set out in the code/s of practice of both the Family Mediation Council and the Law Society. Generally, mediators must:

40 Guides to Good Practice • Be aware of and act in a way that is impartial and balanced as between any participants to the mediation.

• Have no personal interest in the outcome of the mediation.

• Not mediate in any case in which they have acquired or may acquire relevant information in any private or other professional capacity.

• Not act or continue to act if they or a member of their firm has acted for any of the individuals in issues not relating to the mediation.

• Not accept referrals from any professional practice with whom they are employed, in partnership or contracted and which is involved in advising one of the participants on matters that relate or are capable of relating to the mediation, even though the practices are separate legal entities.

• Not refer a participant for advice or for any other professional service to a professional practice with whom they are employed, in partnership or contracted, if that advice or service relates or is capable of relating to the mediation, even though the practices are separate legal entities.

• Conduct mediation as an independent professional activity and must distinguish that activity from any other professional role the mediator may practise.

Impartiality in practice Mediators have a particular responsibility to ensure that they seek to prevent any manipulative, threatening or intimidating behaviour by either client. They should also seek to address wherever possible any imbalance of power that exists, or arises during the mediation process.

Where it appears that any imbalance of power or behaviour between the clients is preventing or is likely to prevent the mediation from being a fair and/or effective process, mediators should consider taking appropriate steps, including ending the mediation if necessary.

In setting up or assessing for suitability for mediation, mediators should ensure that prospective clients are informed as early as possible of the mediator’s duty to conduct any mediation process in an impartial and balanced manner. This can be done in a range of ways:

• through the early provision of information to prospective clients;

• in any early telephone or other discussion with prospective clients;

• in any pre-mediation meeting or MIAM;

• at the point of discussing and preparing to sign the agreement to mediate; and/or

• giving permission to clients to raise any concern they may have at any point as to the mediator’s impartial conduct of the mediation.

2.2 Voluntary participation

Mediation and the participation of all – mediators and clients – is voluntary at all times.

With the introduction of the pre-application protocol and the new arrangements to come into place as

Guides to Good Practice 41 a result of the government’s response to the Family Justice Review, the Legal Aid, Sentencing and Punishment of Offenders Act and the introduction of court-referred mediation schemes, it is critical that all mediators continue to ensure that:

• Prospective and current clients are alerted to and reminded that mediation is a voluntary process.

• Prospective clients have the opportunity to explore whether mediation is the right and voluntary choice for them.

• They consider whether a mediation process should commence or continue if there are concerns in relation to voluntary participation, and particularly where the mediator considers that either or both clients are unable, unwilling or lack appropriate capacity to take part in the process fully or freely because of, for example, abuse or threat of abuse (in which case the mediator must raise the issue and discuss their concerns with the clients and consider whether to suspend or end the mediation process).

• They do not give reasons for people deciding not to take part in mediation, or apportion blame of any kind to a decision not to enter or continue with mediation, for the purposes of completing an FM1.

As above, the principle of voluntary participation can be made clear to prospective clients/clients in a range of ways.

2.3 Neutrality

Mediators must remain neutral as to the outcome of any mediation. This requires that mediators monitor their practice at all times to ensure that they are not seeking to impose their own preferred outcome or to influence either or both clients towards an outcome not of their choosing.

Resolution mediators do have a responsibility, however, to inform clients if they consider that the outcome/s they are considering might or would fall outside that which a court might approve or order. Mediators may also provide legal and other information designed to assist clients in a mediation process to make informed decisions, but must make it clear that they do not provide partial advice of any kind. Information should be provided as neutral and mutual, and not ‘individualised’ to either client. Mediators should also be alert to points at which it would be helpful for either or both clients to have advice from their individual legal advisers or other specialised advice that would assist them in reaching an outcome.

2.4 Confidentiality

Subject to the caveats in relation to the safeguarding of individuals and particularly of children, and in relation to money laundering legislation or criminal activity, mediation is offered as a confidential process. Mediators must not disclose or share any information about or obtained in the course of mediation to/with anyone without the express consent of each and both clients, an order of the court or where the law imposes an overriding obligation of disclosure.

Mediators should be aware of the existing precedent that guides confidentiality in the mediation process: Re D (Minors) (Conciliation: Privilege) [1993] 1 FLR 932, which is specific to mediation relating to children, arrangements for children or Children Act proceedings (see later in relation to finance and property etc).

42 Guides to Good Practice Mediators should also be aware of other more recent precedents in relation to civil/commercial cases which may impact upon family mediation, and of the European Directive (2008) Art 7.

Any correspondence and/or discussions with either client’s legal or other advisors can only take place where the clients have given permission for this to happen and mediators must act in a balanced way in providing information so that any information is provided in an even-handed way to both legal advisers. It is too often the case that legal advisers feel concerned that they do not have information about the progress of their clients in mediation and are asked to give advice without understanding the context, so mediators should consider the usefulness of keeping in touch with legal advisers and of forwarding mediation documents to them as part of good client service. Resolution mediators are expected to hold in mind the importance of good legal advice and that mediators and legal (and other advisers) should endeavour to work as a team to provide the best, most efficient and economical client service. However, they must also ensure that they have explained principles of confidentiality to the clients and have obtained their permission to be in contact with their legal advisers.

2.5 Confidentiality and safeguarding

All mediators must be aware of the statutory guidelines set out in ‘Working together to safeguard children: a guide to inter-agency working to safeguard and promote the welfare of children’ (DfE 2010).2

Mediators should also be aware of the local arrangements set out by each children’s safeguarding board for their area, which are available via the internet (enter the name of the nearest town or city followed by ‘children’s safeguarding board’). Wherever possible, mediators should make contact with their local children’s services duty team to discuss local arrangements for reporting, to gain an understanding of if, where and when it is appropriate to report, and the action that the team would take should a report be made.

Where a specific allegation that a child has suffered significant harm or is at risk of significant harm, mediators must stop the mediation process and discuss with the clients the limits of confidentiality, their responsibility in regard to protecting children from harm, and the allegation that has been made. They must then decide what action should or must be taken, which includes making a report to their local children’s services duty team.

Where a mediator is concerned that a child is at risk of immediate significant harm they must, having discussed and agreed their course of action with the clients, report immediately. If the mediator is concerned that discussing with the clients their concern about an allegation would place the child or children at immediate or increased risk of significant harm, they should not discuss the issue with the clients and make an immediate report to children’s services (Working Together, Ch 5, 5.16).

Mediators also have a duty of care in relation to adults at risk of or subject to harm due to an abusive relationship. They must consider the potential for honour-based or other violence and where this is the case, mediators should take appropriate steps to ensure that they discuss with clients an appropriate course of action, which may include reporting or referring clients to an appropriate agency. Mediators should not make judgements about either client in regard to what has been reported but seek to provide information and assistance to each and both clients in an even-handed way. Mediators should also take care to ensure that in all cases of safeguarding concerns, ‘next steps’ are discussed with clients and an appropriate onward destination from the mediator is agreed. Great care must be taken to ensure safe exits for clients in these circumstances.

2 www.education.gov.uk/publications/eOrderingDownload/00305-2010DOM-EN.pdf.

Guides to Good Practice 43 A brief record of what happened and the actions of the mediator should be made as soon as possible.

In all cases relating to safeguarding concerns, mediators should be in contact with their PPC for support, advice and guidance as soon as is possible and practicable.

Full details on how practitioners should deal with such situations can be found in the Resolution protocols for mediators, which are available on the Resolution website.

2.6 Confidentiality, privilege and legal proceedings

Discussions, client negotiation and proposals made within mediation must be conducted on a legally privileged basis. Mediators have a responsibility to ensure that clients understand the nature of confidentiality and of legal privilege, and are content to sign the agreement to mediate on the basis that, in doing so, they agree that discussions and negotiations in the mediation process are not to be referred to in any legal proceedings and that mediators cannot be required to give evidence or produce any notes or records made in the course of the mediation unless all participants agree to waive the privilege or the law imposes an overriding obligation of disclosure upon the mediator.

For clarity and as information for mediators, in Farm Assist v DEFRA [2009] EWHC 1102 (TCC) Ramsey J, having reviewed all available mediation precedents, defined ‘confidentiality’ and ‘privilege’ as follows:

• Confidentiality: the proceedings are confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality, but where it is necessary in the interests of justice for evidence to be given of confidential matters, the courts will order or permit that evidence to be given or produced.

• Without prejudice privilege: the proceedings are covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.

• Other privileges: if another privilege attaches to documents that are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the without prejudice privilege.

Although Farm Assist v DEFRA concerns a civil case, the principles set out by Ramsey J in his judgment provide a useful framework for family mediators particularly in relation to matters involving financial/ property discussions or proposals.

Mediators should also be aware that, more recently, attempts to utilise other civil judgments have started to emerge, whether it is to establish that an ‘agreement’ was reached in a mediation (Brown v Rice & Patel [2007] EWHC 625 (ChD)), because of third-party interest (Cattley v Pollard [2007] 3 WLR 317, because of alleged misrepresentation, fraud or undue influence (Unilever v Proctor and Gamble [2000] 1 WLR 2436), or on interests of justice principles (Farm Assist v DEFRA [2009] EWHC 1102).

Clients must also understand and agree that all factual information in regard to financial issues must be provided on an open basis, so that it can be referred to in any legal proceedings.

All prospective mediation clients should also understand and agree that all information or correspondence provided by either of them in a mediation process should be shared openly and not withheld, excepting any address or telephone number or as the clients may agree otherwise.

44 Guides to Good Practice 2.7 Safeguarding and privilege

Mediators must make clear to clients that confidentiality and legal privilege will not apply in relation to any allegation that any person, particularly a child, is suffering or is likely to suffer significant harm.

2.8 The welfare of children

Mediators have a special responsibility in regard to the welfare of any child of the family and should encourage and assist client parents to focus on the needs and interests of their children and their future parenting.

Mediators must consider the wishes and feelings of any children of the family and encourage parents to consider the ways in which they may consider their children’s views, wishes and feelings.

Where it is appropriate to do so, mediators may discuss with client parents whether and to what extent it is proper to consult with their children directly in order to ascertain their wishes and feelings. Where clients and mediators agree that it is appropriate to do so, and there has been appropriate discussion with the parents as to how and when this might take place, the consent of any child or children must first be obtained in a way that is appropriate to each child, taking into account their age.

Any mediator consulting directly with a child or children must have been specifically trained to do so and must hold an enhanced CRB check; they must also provide appropriate facilities for direct consultation. They must offer children confidentiality as to any discussions, except where the child discloses an issue of significant harm. Where a mediator suspects than any child is suffering or likely to suffer significant harm, they must ensure that the child understands that another person, responsible for the safety of children, will be informed and, unless it would place the child at further or immediate risk of significant harm, the mediator must talk to the parents about getting help and advice. In any event, mediators must also inform parents (excepting where in talking with the parents it would place the child at risk of immediate or further significant harm) that they have a duty to report the matter to an appropriate agency.

Where mediators consider that client parents are or are proposing to act in a manner likely to be seriously detrimental to the welfare of any child of the family, they must consider ending the mediation, having discussed with the client parents their reasons for doing so and ensuring that this is outlined in any closing or future communication.

See the Resolution protocols for further advice.

2.9 Abuse and power imbalances within the family

As touched on above, all mediators must be alert to the likelihood of power imbalances existing or emerging between clients in a mediation. Mediators must ensure that all clients take part in mediation willingly and without fear or threat of violence or harm. They must undertake appropriate screening procedures before the commencement of and during any mediation process.

Where a mediator has concerns that there are, may be or have been issues of abuse, harm or violence, they must discuss with each and both clients whether taking part in mediation is appropriate, the client’s capacity to take part and must provide information about available support services.

Guides to Good Practice 45 Where mediation does take place, mediators must ensure that principles of voluntary participation, fairness and safety are adhered to and that they ensure the safety of all clients, especially on arrival and departure.

Mediators must also ensure that they endeavour to prevent manipulative, threatening or intimidating behaviour by either client during the mediation.

3. Conduct of mediation

3.1 First contacts: assessing suitability and appropriateness

Mediators must always ensure that prospective clients are given full information about the principles and process of family mediation in order that they can assess for themselves and with the mediator whether it is the right choice for them in all the circumstances.

Whether through or from another professional, or directly from a prospective client, on receiving a referral mediators should ensure that they carry out appropriate checks in regard to any conflict of interest.

At the first point of contact, whether by telephone or personally, mediators should check the individual’s understanding of mediation and discuss principles, including that:

• mediation is a voluntary choice for all those involved;

• it is confidential – subject to the usual caveats set out above;

• the decision-making authority rests with the clients; and

• the mediator acts in an impartial way.

Mediators should also provide an outline of the mediation process, and stress that as they conduct an impartial process and act in a balanced and neutral way, they would prefer not to take details from prospective clients as to how they individually view the situation, but rather that it would be helpful to know what the prospective client hopes to achieve via mediation, what they believe to be the most important issues to deal with, and the reasons for those hopes or objectives.

Mediators should start their process of screening by stating their responsibility for safeguarding individuals, especially children, and by asking open and direct questions about whether the prospective client has any concerns about meeting together with their former partner (see also safeguarding/ screening in the MIAM below). At all times, mediators must remain aware of the importance of maintaining impartiality and balance in any dealings with clients – both before and during mediation. Care must be taken in relation to the prospective client’s opinion of, or narrative around their former partner and/or their individual perception of the situation, to ensure the mediator does not become (or be perceived to have become) partial to the view of one client rather than the objectives and aspirations of both.

Information should also be provided on the mediation process, eg an indication of length and average number of sessions required, and the documentation that will be prepared by the mediator. This should include an explanation of financial disclosure and the privileged status of the memorandum of understanding or outcome summary/statement (and that it is an expression of the proposals reached in mediation and not a binding agreement, the value of individual legal advice, and how clients may

46 Guides to Good Practice then achieve a binding agreement). Prospective clients should be provided with the following ahead of any first meeting:

• a preliminary information form (which should be completed and returned to the mediator ahead of any first meeting);

• a blank agreement to mediate;

• information about the mediation process; and

• details of fees and charges.

Generally, where direct contact is made by one prospective client, mediators should ask them to ensure that their former partner makes contact with the mediator. This avoids mediators making a ‘cold’ contact with a prospective client who may be unaware that their partner or former partner is considering mediation. Great care should be taken in handling the sensitivities of first contacts at all times.

Resolution precedent documents may be downloaded from the Resolution website.

3.2 The importance of screening processes

All mediators should be aware of and conversant with the scope of abuse in couple relationships, which is not limited to forms of violence alone. Some forms of abuse are subtle, and may include controlling behaviour which has resulted in one person’s inability to be self-determined or act independently of the other, forms of emotional abuse or bullying that have led to a serious loss of self-esteem in an individual, reducing their capacity to take part in discussions on an equal footing. It is essential therefore that all mediators ensure they have a clear understanding of, and carry out a process of, screening for all aspects of harm or abusive behaviour, whether in the past, ongoing or alleged. It is also critical that mediators remain alert to factors in the clients’ past or continuing relationship which may put either client (or their child) at risk, or affect either client’s capacity to take part equally in a mediation process. Prior to starting a mediation process, mediators should offer a confidential meeting to each client (as mentioned above) in which they outline the main safeguarding/screening issues discussed above, and discuss any concerns they may have voiced in any telephone conversation or recorded or indicated in their returned preliminary information form.

This is to clarify whether mediation is the right and voluntary choice for them and consider with them what would assist in ensuring that they can take part in any process of mediation comfortably, openly and without fear or anxiety.

Where it is the case that mediation is not an appropriate or suitable choice, mediators should ensure that they have discussed with that prospective client next steps to ensure their individual safety or that of any child or children (including any report that the mediator will make to appropriate authorities where it is appropriate to do so).

Mediators are not under any obligation to share or to disclose information relating to abusive behaviour discussed in individual meetings to the other prospective client as the meeting is offered pre-mediation and as a confidential meeting. (Note however, that mediators should make clear that confidentiality offered in an individual meeting is subject to the usual caveats set out above and make clear that information shared in an individual meeting that is likely to be pertinent to any subsequent mediation discussions would need to be disclosed by the client as part of any subsequent mediation process). The mediator’s role is not to make judgements about either or both clients and/or their situation, but to

Guides to Good Practice 47 assess with each the suitability of a mediation process given all the circumstances and where it is not, that each client has a forward path beyond the meeting that ensures the safety of all concerned.

3.3 First meetings

Good practice dictates that an individual meeting is conducted with each prospective client. Even where the clients’ stated preference is to meet together, mediators should explain and ensure that prospective clients are seen separately in order to carry out a screening process, to check information provided by the client on their preliminary information form, and to discuss any special needs or arrangements that would assist them to engage in the process comfortably and confidently.

3.4 Mediation information and assessment meetings

At present, MIAMs are triggered by intent to issue proceedings. Clients in this situation may be less likely to engage with mediators in the first instance and care should be taken in making contact with each and in providing an explanation as to the purpose of the meeting. Resolution believes the information and assessment meetings offer a significant opportunity to engage with clients and to provide a valuable client service in relation to separation or transitions akin to the ‘options meeting’ already offered by many members. Information and assessment meetings should not, therefore, be viewed as a ‘bureaucratic hurdle’ or of little significance. Good practice guidelines are that these meeting should not be less than 45 minutes and more generally one hour, and should be charged for accordingly. (The FMC guideline suggests that mediators should not charge less than the current publicly funded rate.)

Wherever possible, appropriate and practicable mediators should offer an information and assessment meeting to both the applicant and respondent, even where the prospect of mediation might seem slight, as it is also important that individuals have an opportunity to consider the other options available to them and to discuss any other information needs they may have and for which the mediator may ‘sign-post’.

Mediators should consider carefully how they can best and most economically provide information to referrers and to prospective attendees about the purpose of information and assessment meetings, and consider the means by which they will gather information ahead of the meeting in order that they may use the time spent with the attendee to best advantage. This may include:

• Information provided on the mediator’s/practice website.

• Leaflets provided to referrers for client use.

• A short, preliminary information form to be completed by prospective clients and returned to the mediator (bearing in mind that attendees may not wish to provide a great deal of personal or sensitive information prior to meeting).

Mediators should provide information about the purpose of the MIAM, ensuring that prospective attendees understand that it will provide an opportunity to consider:

• Whether and what process of dispute resolution might be available and suitable for them.

• Any information they might need in relation to their circumstances, eg the effect of separation for children, parenting apart, the legal process, and ‘signposting’/next steps information

48 Guides to Good Practice pertinent to their circumstances, eg in relation to debts, housing/ accommodation, benefits, personal professional support services etc.

Mediators need also to ensure that information is provided in a neutral and mutual way, bearing in mind that they may subsequently be acting as mediator with the two people whom they have met separately.

Mediators conducting information and assessment meetings may conduct these as confidential, subject to the usual caveats. However, and with a view to the potential for mediation, they should also explain that mediation is an open process and that if individuals subsequently choose to mediate, pertinent information would need to be shared.

3.5 Safeguarding/screening in the MIAM

It is essential that mediators carry out a process of screening for harm or potential harm as part of the invitation to, and at, the MIAM. It is likely that people who have been or are in an abusive relationship which has remained unreported will be among those who will be required to come to a MIAM. Where there are issues of harm, mediators must ensure that, as above, they adhere to their duties and responsibilities in relation to safeguarding and ensure the appropriate reporting and that information is provided to clients as to next steps. See the Resolution mediation protocols for more detail in this area.

3.6 Public funding

All mediators are required to be able to assess prospective attendees for eligibility for public funding for mediation. Mediators should provide information to prospective attendees about eligibility limits and/or refer them to the Community Legal Advice Service. Information can be found on the direct.gov website, or use the eligibility calculator. Much of this information will migrate to the new information hub towards the end of 2012.

Mediators who do not hold a contract for the delivery of publicly funded mediation should make clear to both referrers and individuals that this is the case and refer them to those practices that can offer public funding. Where prospective attendees state a preference to meet with a mediator who cannot offer publicly funded service even though they know that they are or would be eligible for public funding (and who wish to pay privately) those clients should confirm in writing that this is the case.

3.7 The first mediation meeting

Prior to any first meeting, whether an individual or joint meeting, mediators should take care in establishing an appropriate environment for mediation. This should include:

• Appropriate arrangements for waiting – especially where either client has voiced concerns about seeing or meeting with their former partner in the first instance. Reception staff should be properly briefed to be able to welcome and arrange waiting for each client.

• Mediation rooms should be comfortable and mediators should ensure that all required documentation and resources are available within the room.

• Mediators should check that there is easy exit from the room for both clients and for themselves (and that they have properly briefed support staff and have a strategy in place should any issue of abuse arise during the mediation).

Guides to Good Practice 49 • Wherever possible, mediators should have an appropriate and private space available should either client need to take a break during the mediation meeting.

At a first meeting mediators should ensure that both clients are clear about the principles and conduct of the mediation and are willing to sign the agreement to mediate, which must be signed before starting the mediation process. Care should also be taken to ensure that arrangements for payment have been discussed and agreed before commencing the first mediation meeting.

Mediators should then... • establish the issues to be discussed and resolved;

• create with the clients a mutual agenda; and

• begin to discuss with the clients the priority issues, establishing whether there are short-term matters to be dealt with and planning with the clients the medium- and longer-term issues and priorities to be considered.

If the clients are intending to deal with their finances in the mediation, time should be set aside towards the end of the meeting to go through the (mediation) form E or other financial form to be used in order to explain to clients the sections pertinent to their disclosure and to provide any information to assist them in assembling the information and documentation that will be required to provide a full and frank disclosure. Mediators should provide clients with information about the necessity and requirements of financial disclosure and that whichever route they choose to settle financial issues between them, an open disclosure of finances will be required.

Mediators should explain to clients that they will require completed forms E or other financial form returned to them ahead of the meeting (usually 3-4 days ahead) and that if the completed forms are not received then it may not be possible to proceed with the meeting. An explanation of the importance of supporting documentation should also be provided to clients, along with the fact that although the mediator is not responsible for verification of documentation, they will assist clients in how they might ensure that this happens appropriately and to an acceptable standard.

The issue of pension valuations remains a difficult one for the purposes of recording financial disclosure as it can take considerable time for documents to be produced. Mediators should discuss this fact with clients, suggest that they contact the pension provider as soon as is possible and enquire as to the expected length of time it may take to get a pension valuation.

Generally, a gap of not less than four weeks should provide clients with sufficient time to gather most of the information and documentation that they need in the absence of a pension valuation, and mediators should ask clients to use their most recent annual pension statement unless and until they receive a valuation. Clearly, this will vary between individual clients and mediators should plan with clients according to their individual and joint situation.

3.8 Establishing financial disclosure

Before the mediation meeting where finances and financial disclosure is to be discussed, mediators should ensure that they have received from each client a completed (mediation) form E or other financial form to be used and copy supporting documents (unless it is the case that the clients are to bring the documents to the meeting and the mediator is to copy them then.) If the completed forms have not been received by the date agreed at the previous meeting, mediators should take steps to

50 Guides to Good Practice contact clients to check whether there has been a problem in returning them and whether the client can ensure they are with the mediator in good time before the meeting.

On receipt of the completed forms, mediators should:

• Check through each one, noting any areas of discrepancy between each client’s recorded figures, missing information that will need to be provided and any other features of note.

• Copy both forms in order that mediator and each client has a set of both forms (and, if provided, any supporting documentation).

• Optionally, mediators may wish to draft a ‘pencil’ schedule of major figures as an aide memoire for themselves in the meeting with the clients.

• Prepare an outline for scheduling client information on the flipchart.

At the meeting, mediators should, as in all meetings, first check with both clients whether any matter has arisen since the last meeting that may need to be dealt with ahead of the scheduled recording of finances.

Mediators should then... • Reiterate the purpose of the meeting.

• Explain the use of the flipchart and check that each and both clients are comfortable with the recording of their finances on it.

• Explain that they will transcribe the information once listed on the flipchart into a draft open financial summary/statement and send it to each client as a ‘working’ document for the remainder of the mediation process and until financial disclosure is complete.

• Explain that they have copied both form Es or other financial form to be used so that all will have a copy of each, and ask that clients work with them on a page by page basis to record their joint financial situation.

Financial information provided by both should then be recorded on the flipchart to set out:

• Assets.

• Liabilities and debts.

• A family budget of income and significant outgoings – this last relates to the ‘here and now’ – future income/outgoings/budgets should be reserved to discussions relating to options for the future as part of reality testing any proposals the clients are considering.

Resolution mediators, as family specialists, will have a clear understanding of what needs to be included in any financial disclosure and how to check out areas of discrepancy, uncertainty or missing information. Mediators should also ensure both clients have a clear understanding of the information recorded and why it is required. An important part of recording financial disclosure is for clients to be properly informed about their own finances and confident in their ability to negotiate together towards developing options for settlement.

Guides to Good Practice 51 Mediators have a responsibility to ensure that they assist clients in making a full and frank disclosure of their finances. However, it is not the mediator’s role to interrogate. Where it appears to the mediator that financial information is being withheld or where either or both clients are unwilling to disclose financial information, then the mediator should consider whether to end the mediation and to discuss with the clients alternative means of resolving financial issues between them. Otherwise, financial disclosure should be at a standard equivalent to that which would be required by a legal process or court-scrutinised route, unless as otherwise agreed and recorded by both clients.

3.9 Arrangements for children

Where separating or separated parents are considering future arrangements for their children, mediators should ensure that they:

• Gather information about each child as an individual in order to assist parents in planning to best meet their needs.

• Provide information to parents about what is most helpful to children and young people when parents part.

• Set out the factors that can cause emotional harm to children and young people.

• Provide information about services of support and assistance for separated parents, children and young people – bearing in mind that it is often the case that reactions to parental separation are generally within a normative range. Children benefit most from the support of each of their parents during a family transition and/or from the support of other significant members of their family or supporters who can be briefed by parents to provide support in a neutral way.

• Mediators should, however, be alert to parental concerns about their child’s behaviour that is clearly outside that which might be considered normal – eg self-harming, eating disorder, risk- taking behaviour, drugs, alcohol abuse etc – and for which parents should be provided with information and links to specialised services of assistance.

Discussions in mediation about the upbringing of children when parents separate should take account of the day-to-day care in the unique context of their own family. Parents should be assisted in considering:

• What and how to tell their children about their separation and future living arrangements.

• How to balance their parenting between each and both parents and the importance of children being able to grow up in a close and loving relationship with both of their parents, though apart.

• How to manage parental communication in a way that best meets the needs of their children and especially in relation to providing appropriate boundaries for their children.

• Sharing information such as addresses as to where their child or children will be when they are with each parent, and the means for contacting each other.

• Significant family relationships – grandparents and other family members.

• How new relationships of the parents might best be managed as far as children are concerned.

52 Guides to Good Practice • Arrangements that have significance for children and young people – eg for family pets.

• Significant issues and events – birthdays, Christmas, school holidays etc.

• Future education, health care issues and any special needs relating to their children.

• Reality testing arrangements they are considering in the context of their growing children’s needs.

• Consideration of the importance of taking account of young people’s needs as they grow towards independence – having time to spend with their friends and peers etc.

• Contingencies for when things go wrong.

Wherever it is appropriate, mediators should assist parents in setting out their aspirations as separated and co-operative parents in the memorandum of understanding or annexed to it as a parenting plan/ parenting agreement. Parenting plans/agreements should not be a means of simply setting out the ‘metric’ of separated parenting – the time children will spend with each parent – but a statement of how parents hope to raise their children though apart.

3.10 Developing options

Once mediators and clients have gathered all the information that is needed to make informed decisions about the future, clients should be assisted to consider all the options that may be available to them. Mediators must take care not to provide clients only with options that they, the mediator, believe would be an appropriate outcome, but they can assist clients by providing other options that the clients may not have thought of or put forward, so long as they avoid any indication that the option suggested is a preferred or ‘better’ potential outcome. As clients work towards achieving an outcome, their preferred option should be carefully reality-checked and information given where an option being considered may fall outside that which a court would order or approve. Mediators should also be alert to where and when it would be helpful for clients to seek individual legal or other advice and encourage clients to do so.

3.11 Preparing to draft documentation

Resolution provides model document outlines for both open financial summaries/statements and for the memorandum of understanding. Mediators should be aware of the headings in these documents and ensure that at a point where the mediation is coming to a conclusion, they check with clients that they have covered all pertinent areas, including eg the drafting of wills, signing of articles of severance, any prospect of inheritance, tax and benefits.

3.12 Drafting and presentation of mediation documents

Mediation documents are of great significance to clients, recording as they do the commitment they have made and the work they have undertaken in the mediation, often in difficult and emotional circumstances. Documents should always be of a quality and standard that reflects that significance. Mediation documentation is also the ‘shop window’ of mediation – that part of a mediation that is seen externally – and mediators should therefore ensure that documents are carefully prepared, well presented, and accurate.

Guides to Good Practice 53 3.13 Recording

Any recording undertaken by the mediator as part of the mediation process is open to the client’s scrutiny. Mediators should explain this to clients and, if note-taking, should keep such notes to the bare minimum of facts, tasks yet to be undertaken and any other information that assists both clients and mediator to progress the mediation. Mediators may wish to consider whether they should send clients a brief and balanced summary of discussions and tasks to be undertaken between meetings as part of client service. Any summary provided should be one document sent to both clients, separately if they prefer. Mediators who choose to do so should also ensure that their fee information reflects this, or that any such correspondence is costed into their overall fee.

For professional practice purposes and particularly when working towards accreditation/competence assessment, mediators should also keep a brief ‘professional practice note’. This should record:

• a brief overview of the situation and the issues brought to the mediation;

• what skills and/or techniques they used in the mediation;

• what went well, and what, on reflection, they might have done differently; and

• what areas of professional practice they would like more information or guidance about.

Professional practice notes are kept separately from client files as they provide an aide memoire on practice issues for discussion between the mediator and their PPC, and as a means of preparing their accreditation portfolio.

3.14 The memorandum of understanding/outcome statement or summary

This document should be clearly marked as ‘confidential’ and ‘without prejudice’ and the precedent paragraphs from the Resolution model document must be used at the opening of the document.

All headings in the model document should be addressed and if a particular issue has not been discussed in the mediation, it should be indicated that this is the case. Where there are outstanding matters to be resolved, these should also be noted in the document. If a mediator has a concern about any part of the outcome, but having discussed this concern with the clients they wish nonetheless to proceed with a proposal or decision, then the mediator should record this as a caution within the document.

Language used in mediation documents should be clear, unambiguous, neutral and balanced. Formal legal terminology should be avoided (unless an explanation as to the term used is also provided). Use of the words ‘agreed’ and ‘agreement’ should be avoided in the memorandum of understanding in order to ensure there is no confusion as to the status of the proposals made in mediation.

Mediators should ensure that they have drafted a bullet point summary of the proposals that clearly sets out the proposals reached, with a timetable wherever possible and practicable.

The memorandum or outcome statement/summary is the mediator’s recording of the outcome from the mediation and is signed by the mediator and not by the clients (this also ensures that there can be no misunderstanding about the non-binding nature of the document).

54 Guides to Good Practice 3.15 Open financial statement

This document should be clearly titled as an open summary or statement and the opening paragraphs from the Resolution model document must be used and an indication given in the opening paragraphs as to whether the document is a full disclosure, or whether disclosure is not yet complete and the date that the clients have agreed applies to their disclosure.

Usually, a ‘working’ draft of this document will have been prepared by the mediator following the joint recording of the financial information provided by the clients. Once all financial information has been finalised as far as possible, the mediator should prepare a final version that can be signed by the clients at the last meeting.

Background information should be factual and care should be taken when recording any such information to ensure that nothing of a particularly sensitive nature is included, as this document may be seen by a number of other professionals.

The financial schedule should set out the client’s finances clearly (including details of account/policy numbers/references) and any significant points flagged up – including where there is any information still to be provided/not yet available. The schedule should include all assets and liabilities, and a separate schedule setting out income and present outgoings should also be included. A further schedule of documents seen should be provided, with copies of these, and the client’s individual (mediation) form Es or other financial form attached.

This document is signed by the clients rather than the mediator as an indication that it is their agreed financial disclosure.

3.16 Variations – disclosure

Obtaining financial information, particularly in relation to CETV/pension valuations, can cause considerable difficulties in mediations. Where it does not prove possible to obtain a valuation but the clients wish to proceed with their negotiations, or clients state that they do not wish to deal with any pensions, mediators must make clear that as pensions can represent a significant family asset there is a danger that any proposals reached in regard to their finances may be set aside once a valuation of the pension is made. A caution should also be placed in any documentation as to the fact that pension information has not been made available or that clients, having received information about the importance of pensions, have stated their wish not to discuss or deal with any pensions and that the clients need to be aware of the effect this may have on any proposals reached/recorded.

Occasionally, clients may decide that they wish to proceed as far as is possible in their negotiations even though they are waiting on a pension valuation/CETV – and especially if they are aware or have been informed that information may take months rather than weeks to be available. Having provided information about the importance of pensions, mediators should consider carefully with the clients whether they should continue their negotiations on that basis, or whether they should re-schedule the mediation process to a time when the information is going to be available. Whatever the case, mediators have a duty to ensure that clients are provided with the best possible service – and one that does not result in proposals that are unfair or cannot be taken forward to a workable or binding conclusion as a result of missing financial information.

As noted earlier, where clients decline to provide full information on any aspect of their finances, or the mediator has a concern that disclosure is being withheld, they should consider with the clients whether

Guides to Good Practice 55 to terminate the mediation. If so, they should provide clients with a written confirmation as to the reasons for ending the mediation and a note of any proposals outside of the financial matters that have been reached in the mediation. If this is provided as a memorandum of understanding, the mediator should record that the mediation was ended as it was not possible to obtain full financial disclosure and record only those proposals made in relation to non-financial matters.

3.17 Money laundering, fraud etc

Mediators have a responsibility to ensure that prospective and current clients are properly informed about the mediator’s duty to disclose suspected or actual fraudulent or criminal intent. This information is detailed in the agreement to mediate and the client’s attention should be drawn to it and reminders provided if the mediator has any concern that the client may make such an allegation or disclosure.

Where mediators have any concern in relation to allegations – or potential allegations – of a fraud or other criminal offence, they should pause the mediation process, remind clients of the limits of confidentiality and of their duties, and where necessary or appropriate end the mediation, ensuring that clients have a ‘next step’ for assistance beyond the mediation process.

3.18 The effect of Bowman v Fels – mediation

‘Money laundering’ refers to the process of concealing the source of legally, illegally, and grey area- obtained moneys. The Proceeds of Crime Act 2002 (and as further amended by the Serious Organised Crime and Police Act 2005 and the Serious Crime Act 2007) sets out legislation in relation to money laundering offences and includes provisions requiring businesses within the ‘regulated sector’ (banking, investment, money transmission, certain professions, etc) to report to the authorities suspicions of money laundering by customers or others. One consequence of the Act is that solicitors, accountants, and insolvency practitioners (and some businesses, eg banks), who suspect as a consequence of information received in the course of their work that their customers or clients (or others) have engaged in tax evasion or other criminal conduct from which a benefit has been obtained, are required to report their suspicions to the authorities (since these entail suspicions of money laundering). In most circumstances it would be an offence (tipping-off), for the reporter to inform the subject of their report that a report has been made. These provisions do not, however, require disclosure to the authorities of information received by certain professionals in privileged circumstances or where the information is subject to legal professional privilege.

The Court of Appeal in Bowman v Fels [2005] EWCA Civ 226 excluded settlements of existing or contemplated litigation from ss327 to 329: that decision, logically, applies equally to mediation and to mediators.

The Court of Appeal recorded at para 100:

‘The need to encourage co-operation and the value of consensual settlement have been underlined both nationally, by the Woolf Reforms in particular, and internationally, eg in the acquis of the Council of Europe and the developed practices of courts in countries such as the United States and Canada. Consensual settlement gives effect to the parties’ perception of the strengths and weaknesses of their respective positions, which would otherwise have to be determined by litigation to judgment. Any consensual agreement can in abstract dictionary terms be called an arrangement. But we do not consider that it

56 Guides to Good Practice can have been contemplated that taking such a step in the context of civil litigation would amount to ‘becoming concerned in an arrangement which…. facilitates the acquisition, retention, use or control of criminal property’ within the meaning of s328. Rather it is another ordinary feature of the conduct of civil litigation, facilitating the resolution of a legal dispute and of the parties’ legal rights and duties according to law in a manner which is a valuable alternative to the court-imposed solution of litigation to judgment.

101. We appreciate that this means that there is a distinction between consensual steps (including a settlement) taken in an ordinary litigious context and consensual arrangements independent of litigation. But this is a distinction that is inherent in recitals (17) and (18) and in the second paragraph of article 6(3) of the 2001 Directive, as well as in ss330(10)(c), 333(3)(b), and 342(4)(b) of the 2002 Act.... The 2002 Act makes it clear that the distinction is between situations where there are existing or contemplated legal proceedings and other situations, and this seems to us consistent also with the language of recitals (17) and (18) and the second paragraph of article 6.3 of the 2001 Directive.’

And at para 95:

‘Information communicated or given with the intention of enabling a court to adjudicate upon the respective rights and duties of opposing parties would not be given for such a purpose, even though it happened to disclose that one or other party had engaged or was engaged in money laundering activities (eg a VAT or tax fraud). For the reasons we have already given, the issue or pursuit of ordinary legal proceedings with a view to obtaining the court’s adjudication upon the parties’ rights and duties is not to be regarded as an arrangement or a prohibited act within ss327–9.’

Therefore in general and practical terms, mediators and mediation is excluded from ss327–329 of the Proceeds of Crime Act.

Mediators should also be in contact with their PPC for early guidance and support in relation to concerns about money laundering, fraud or criminal intent.

3.19 Payment for mediation documents/concluding the mediation

In all cases, the mediator should discuss with clients the cost of providing whatever type/nature of documentation they want.

Mediators should ensure that they have explained at the outset and have reminded clients at the conclusion of the mediation that there is a charge for the preparation of mediation documentation. (Generally, the recommended charge for documents is the cost of a mediation session.) On completing the mediation documents (which should not be more than a maximum of 10 working days from the date of the last meeting), mediators may wish to inform clients that the documents are available and will be forwarded to the clients on receipt of payment. Mediators may also take payment for the mediation documents at the last meeting if this is acceptable to both clients. In any event, mediators should ensure that they have clearly set out arrangements for the payment and delivery of mediation documents.

On release of the documents to clients, mediators should ensure that they remind clients of the onward path from their mediation – encouragement to see a solicitor for individual advice on their proposals with a view to formalising their proposals into a binding agreement/consent order.

Guides to Good Practice 57 Mediators should consider diarising a ‘follow-up’ letter to clients to check that the clients are progressing with their proposals and to invite clients to return to mediation if they have encountered any problems.

3.20 Variations – documentation

Occasionally, clients prefer not to have a memorandum of understanding, or their mediation may not have included finances and therefore they do not need to make financial disclosure. Early in the process, mediators should discuss the clients’ wishes and requirements in respect of the documentation that reflects and records the outcome of their mediation.

This might be by way of a confidential, legally privileged, ‘without prejudice’ letter or a confidential and legally privileged outcome statement or summary. Mediators should take care to ensure that where they do not provide a full memorandum of understanding, they ensure that any documentation they do provide is appropriately headed to indicate the status of the document.

3.21 Payments on account

Mediators may take payments on account if they have appropriate arrangements to do so and should ensure that they keep a detailed breakdown of time spent. If mediation should end or break down ahead of the time the client/s have lodged payment for, mediators must ensure a prompt return of any outstanding client funds and provide a detailed breakdown of costs incurred. Mediators should also be aware that as mediation is a voluntary choice, they should also consider whether taking payment at the end of each session is a more appropriate means of indicating and confirming that it is the client’s choice as to whether they will continue in a mediation process at the conclusion of each meeting.

3.22 Non-payment

Generally, mediators should not send documents until payment has been received from both clients. However, from time to time it is the case that one client provides payment but the other does not. In this case, mediators must provide the client that has paid with the documents (as they have been paid for). Mediators should contact any client who withholds payment to discuss the reasons why this is the case and to consider with the client how payment can be made/collected.

In the case of non-payment for meetings, mediators should inform any client who has not made payment that the mediation cannot continue until payment has been made.

3.23 Ending a mediation process

We have already touched upon some of the most common reasons for terminating the process. In summary:

• There is a power imbalance between the clients that cannot be addressed.

• It becomes apparent that either or both clients lack capacity to take part or to negotiate together or to reach a workable, fair and reasonable outcome.

• There is an allegation made in regard to harm or abuse, whether between adults or in respect of a

58 Guides to Good Practice child and the mediator decides that it requires appropriate protection action. Here the safeguarding guidelines must be followed.

• There is deliberate non-disclosure of financial information.

• Information is disclosed, an allegation is made or the mediator suspects fraudulent or criminal intent on the part of either or both clients.

• No progress is being or is likely to be made in relation to the issues to be resolved

• Either or both clients wish to end the mediation.

• The mediator believes that for any reason related to the principles of mediation, it is inappropriate to continue.

Where a decision is made to end the mediation, the mediator should ensure that they have discussed with clients the options that remain available to them to resolve their issues or conflicts and ensure that they each and both have an onward destination or immediate ‘next step’ beyond mediation.

3.24 Dealing with client concerns and complaints

Mediators have a duty to ensure that they have provided information to clients in relation to any concerns or complaints they may have in relation to the mediation process or the mediator. The agreement to mediate details these arrangements for ease of information giving. Mediators should endeavour to resolve any concern or complaint with the client as a first stage where it is possible to do so. Where it does not prove to be possible to resolve a complaint, clients should be provided with information as to how they can make a complaint for investigation by Resolution. All mediators must ensure that they have current and valid membership of Resolution if they have nominated Resolution as the route for any client complaint. Once a client complaint has been received by Resolution, it will be investigated as set out in the practice support ethics and standards section of the website.

3.25 Monitoring performance/practice – client feedback

Wherever possible and practicable, mediators should consider how they will monitor their practice and performance by gathering client feedback as to their experience of the mediation. Mediators who provide publicly funded mediation service are required to do so as part of the terms of their contract and mediators working with private clients should also consider the importance of this aspect of monitoring their practice.

3.26 Relationships between mediators and solicitors

In order to provide the best client service, mediators should carefully consider the role the client’s legal advisers have and the importance of creating a co-operative working relationship that best aids the clients. Mediators should consider with clients whether and how the mediator will keep in touch with their solicitors. As a matter of courtesy, mediators should inform solicitors where they have been in contact with a client in regard to a mediation process and/or if a mediation process is about to be undertaken. Otherwise, mediators should agree with clients whether it would be helpful for the mediator to send solicitors any updated information as to progress of the mediation, a note on referral to solicitors for individual advice and the particular areas/subjects for such advice, and copies of

Guides to Good Practice 59 mediation documentation. Mediators must ensure that any contact they have with legal advisers is in a neutral and balanced way and have the agreement of both clients as to the level of any contact. Mediators must also remain observant of the principles of mediation and ensure that any contact with legal advisers does not breach fundamental principles of practice.

Involving lawyers more directly in the mediation process is dealt with below.

4. Other professional practice considerations

Thus far we have has set out the mediation process as it is usually expected to be conducted. However, each client’s situation is unique and will require, within the framework of mediation principles and process, a bespoke approach. Family mediation is also a young profession and new or varied means of design and delivery within the principles of mediation are emerging. Where a mediator believes that varying their approach to the process is appropriate, they should, in the first instance, discuss their plan with their PPC and follow the guidance given. At all times, they must first check that their planned approach does not breach any of the fundamental principles of mediation. Examples of variations might include:

• involving others in the mediation process who the mediator believes have a substantial or meaningful part in the conflict or in the potential resolution of any conflict;

• any kind of ‘shuttle’ mediation process (especially where this may relate to an abusive relationship between the clients);

• the involvement of adult children in the mediation; and/or

• any other client situation where the mediator believes that mediation has a good chance of success but requires a variation in the way in which it will be conducted.

Set out below are some of the more commonly used/considered methods of practice and practice considerations.

4.1 Co-mediation

Co-mediation can be an effective means of conducting mediation where:

• There are complex family and/or financial issues.

• A gender-balanced team of mediators might afford a valuable resource or model for those who are in high conflict as a result of the ending of their relationship.

• The balance between mediators from different professional backgrounds might assist in the resolution of the particular issues in a mediation (eg an IFA mediator or psycho-therapeutically trained mediator working with a mediator from a legal professional background).

• Support is needed for a new mediator, working with a more experienced mediator.

• There is a need to conduct the mediation as a ‘shuttle’ process for all or at least part of the mediation (where this choice is made because of issues of abuse between clients, unaccredited

60 Guides to Good Practice or less experienced mediators may wish to consult with a PPC as to the appropriateness of a ‘shuttle’ co-mediation).

Resolution encourages all mediators to consider co-mediation as a valuable model of practice and one which may afford particular assistance to some clients.

Where mediators intend to offer co-mediation, they should ensure that:

• They discuss with prospective clients the potential for co-mediation and why it may be of particular assistance in their mediation.

• Consideration is given to an appropriate fee.

• They properly plan and set up any co-mediation and ensure that they and their co-mediator have prepared to work as a balanced team rather than as two individual mediators.

• Clients know that both mediators work as a balanced team rather than as mediator and ‘expert’.

• Where it would be of assistance, they talk with a PPC to ensure a professional approach to co- mediation.

4.2 Involving solicitors in a mediation

Generally, mediation is a discrete process conducted with the clients alone. However, on occasion and where appropriate, it may be helpful to involve the client’s solicitors directly in the mediation process. This may be helpful to consider where:

• There are particularly complex legal issues to be considered.

• The support of solicitors may assist the clients in engaging confidently in a mediation process.

• There are concerns in regard to imbalance of knowledge/information between clients.

• There are or have been particularly high levels of conflict between the individuals.

• There has been a history of abuse between individuals and where they want, if at all possible, to resolve matters between them but there are concerns about capacity and balance between the clients.

All mediators need to consider carefully the direct involvement of solicitors in a mediation process, including:

• A clear understanding by each solicitor and client as to mediation and the involvement of solicitors within it.

• The role of the solicitor/s within the mediation.

• When solicitors will be involved – for one meeting/throughout the mediation/as felt necessary and appropriate/at the conclusion of the mediation as a means of setting out any consent order.

• An outline agreement for and with solicitors taking part in any mediation that sets out the expectations of the mediator, the role of the solicitor/s, expectation of provision of advice to clients privately during the mediation process etc.

Guides to Good Practice 61 Mediators should take care that they do not compromise the solicitor’s relationship with their client where they may be uncertain as to whether the solicitor would accept an invitation to participate in a mediation process. Any discussion with clients in regard to solicitor attendance should therefore be on the basis that it would be for the client and solicitor to discuss together whether it might be possible and practicable in all the circumstances.

Mediators should also make clear that such attendance will attract additional fees for their solicitor’s time in attending.

4.3 General guidance for solicitors supporting clients through a mediation process

Solicitors should ensure that they have an accurate understanding of the principles, process and conduct of mediation in order to inform clients accurately as to the appropriateness and/or suitability of it in relation to their client’s situation. Mediation is most effective when clients, solicitors and mediator work together in achieving an appropriate outcome. In order for this to happen it is essential that solicitors have a clear understanding of mediation and can support clients throughout it.

It is important that all clients are made aware that mediation is a voluntary choice and that they cannot be compelled to take part. They may be required to attend a MIAM (under the terms of the pre-application protocol), or if encouraged or ordered to do so by the court in order to be informed about mediation and other forms of dispute resolution that may be available to them and to consider with a mediator whether their particular circumstances are appropriate for a process of dispute resolution. But it remains the client’s choice as to whether they take up the opportunity to mediate matters.

Mediators do not provide information about the client’s decision not to undertake mediation. It is also the case that a mediator may decide that mediation is not appropriate for a range of reasons – similarly, mediators do not provide information as to how that decision has been reached to either client.

Mediators will generally and as a courtesy inform solicitors if/when clients decide to enter a mediation process but will not report to the solicitor any aspect of the discussions between the clients in mediation unless and until the clients agree that the mediator should have contact with their solicitors, and in what terms.

During a mediation process, mediators will encourage clients to seek individual legal advice on any aspect of their discussions where it is pertinent to do so. Mediators will provide information about the legal process and general legal principles and associated matters (eg the operation of CSA/ CMEC) but do not provide any individualised advice. It is therefore very important that clients are able to take advice as and when they need it. Mediators will also explain their respective solicitors’ responsibility in providing ‘individual best interest’ advice to clients, whereas in mediation, people are seeking to make proposals that best meet their collective needs – and especially those in relation to their future parenting and the needs of any children.

Proposals made in a mediation are legally privileged and without prejudice – the privilege belongs to the participants to the mediation and together they may choose to waive it. Confidentiality of discussions within the mediation, however, remains with the mediator and clients. Even if the clients choose to waive their confidentiality, the mediator may enforce the confidentiality provision, except where an order of the court or the law imposes an overriding obligation of disclosure.

62 Guides to Good Practice Participants in a mediation are informed that they will be required to make full and frank financial disclosure and that such disclosure is made on an ‘open’ basis. During a mediation process where clients are dealing with financial matters, mediators will prepare an open financial summary of the participants’ financial situation from their completed form Es and from documentation provided to evidence the information which has been provided by them in their respective form E. The summary may be provided in either draft form (where financial disclosure is not yet complete) or in final form, which they may take to their legal advisers, independent financial advisers or other professionals in order to discuss their financial situation. They will continue to use the summary during the process of mediation as a means to consider their options for resolving financial issues between them. Mediators do not verify documentation provided by participants but will explain that it will be likely that their respective solicitors will need to do so and will detail and attach copies of documents seen to the summary document.

On completion of the mediation process, mediators will generally supply a memorandum of understanding or outcome summary that details the proposals made within the mediation and on which clients will require independent legal advice, and usually a consent order to be drafted in suitable terms. Mediators will also detail in the memorandum any other legal matters that will need to be considered by clients with their respective solicitors (eg wills, tax considerations etc).

It should be noted that there is variation in the presentation and content of mediation documents. What is outlined here is the best practice standard required by Resolution of its mediator members.

4.4 General guidance for solicitors participating or considering participation in a mediation process

As already stated, mediators should consider all aspects of involving clients’ solicitors. They should also take responsibility to ensure that solicitors are protected from any breach of professional regulations set and/or required by the SRA should they attend as part of a mediation process.

Solicitors who receive a request, whether via their clients or directly from a mediator, to attend a mediation should be aware that participation for anyone is a voluntary choice. They should therefore consider with their client the purpose of their attendance and whether it is appropriate given all the circumstances.

Solicitors should also be clear as to their role in attending and mediators should provide full information of this aspect. This may encompass (but is not limited to):

• Attending with their client with a view to establishing the issues and matters pertinent to the mediation process and supporting their client in clarifying such matters.

• Attending as observers to the mediation with a view to advising their client on aspects identified as requiring specific advice that would assist the parties in reaching decisions.

• Attending to both support and advise their client (individually and out of the room). This may include playing a part in assisting in the client’s process of negotiation.

• Attending with their client for the purpose of drafting a consent order on decisions and proposals reached in the mediation process.

Guides to Good Practice 63 Mediators should provide a form of agreement in relation to the terms of the solicitor’s involvement for discussion and agreement between mediator and solicitor/s.

Conversely, solicitors who in consultation with their client believe it would be useful and appropriate for them to attend should inform the mediator and suggest that this is discussed in order to explore whether it is an option the mediator would like to consider with the clients.

In all cases, this should be understood as a matter for consideration as between mediator, clients and their respective solicitors. It is therefore good practice that professionals keep in communication on such matters – and wherever possible have local means of keeping in touch with each other in respect of opportunities to assist clients through the provision of solicitor-attended mediation and/or mediation generally.

4.5 Working with or as part of a collaborative process

From time to time, mediators may be asked to provide a process of mediation for clients in a collaborative process. This may be because there is a single issue or conflict that the collaborative team believe may be best dealt with in a mediation. Mediators should ensure that they approach any mediation of this type and nature in the same way as they would any other mediation process, that is:

• Check with the prospective clients that this is a voluntary choice for them and is suitable for mediation.

• Provide information as to what mediation is and how it is normally conducted.

• Carry out appropriate screening and safeguarding.

• Ensure that the clients are content to sign an agreement to mediate.

• Provide appropriate documentation at the conclusion of any mediation process.

Occasionally, collaborative practitioners may request that a mediator conducts or ‘chairs’ a four-way meeting. This may be because:

• There are particularly high emotions in play between the clients and the collaborative team believe it may be of assistance to have a neutral person to manage the meeting.

• There are particularly complex legal or other matters that require the considerable attention of the respective collaborative practitioners, leaving them less able to manage the forward progress of the meeting.

• There are other reasons or concerns that have led the collaborative team to believe that the assistance of a neutral professional would assist progress.

Whatever the case, mediators should ensure that they carefully consider whether the circumstances are appropriate for their involvement, and discuss with the collaborative team their understanding of mediation and the skills/role of the mediator. Mediators should check with both clients as to their agreement that the involvement of a mediator is acceptable to them. Mediators should then ensure that they have an appropriate agreement to provide mediation assistance in the context of the collaborative process in which they will assist. This should include the expectations, responsibilities and role of all those involved (including in relation to fees). Mediators should seek the guidance of their PPC in relation to involvement in a collaborative process.

64 Guides to Good Practice 4.6 Mediation where there is or has been abusive behaviour in the couple relationship

Where clients have admitted, disclosed or acknowledged that there is or has been abuse within their relationship and where they still wish to mediate, mediators must take considerable care to discuss with each client whether a mediation process would be appropriate and if so, how it is to be conducted.

It is possible for mediators to consider whether a form of ‘shuttle’ mediation may be appropriate, and if so, they must still seek to establish whether in doing so they can ensure:

• Each client’s protection from (further) abuse or harm can be assured.

• Each client has appropriate capacity to take part, even if the mediation process is undertaken in a ‘shuttle’ model (mediators should be aware of the effect of controlling behaviour in abusive relationships that may result in an individual’s inability to make truly independent decisions).

• They have discussed other support or assistance that may be required to ensure suitable help for either client during a process of mediation.

• They consider working with a co-mediator as a suitably balanced professional team to best manage all the circumstances.

• They are particularly alert to the issues that may arise in relation to confidentiality and impartiality.

Please note that where there have been issues relating to the safeguarding of children and where parents wish to mediate, mediators must always ensure:

• That there is no current investigation by local authority children’s services (in which case mediation should be deemed unsuitable).

• That where there has been an investigation, the mediator has seen any outcome report, the terms of any contract or agreement between the parents and the local authority, or any court order that clarifies the nature of the issues involved and the outcome (and that a decision on suitability for mediation is based on the information available).

• Where a key worker remains involved with the family, they seek to discuss with the parents/ carers whether and how the key worker should be informed or involved in any subsequent decision to mediate.

4.7 Court-referred mediation

All mediators should be aware of the guidance published by Resolution in relation to working with the court and of the FMC information issued to judges, magistrates and court staff in relation to court- referred or annexed practice.3

Generally, mediators must ensure that they do not breach fundamental principles of mediation in offering or providing mediation services with/to their local court. They should be particularly alert to

Guides to Good Practice 65 the fact that the court environment is an alien, unfamiliar and stressful environment for clients, who may find it difficult to fully understand the nature of independent mediation. Wherever possible, any mediation process should be provided away from the court environment and mediators should avoid providing time-limited mediation on the court premises.

Mediators should also ensure that any suggestion that a child should be consulted as part of the court process in order to provide information to the court in relation to the child’s wishes and feelings should be refused as this breaches fundamental principles in relation to the child’s right to privacy and confidentiality. Direct consultation with children as part of an adult mediation process is governed by a set of principles and procedures that should be adhered to in order to protect the child and the parents, and to preserve a clear understanding of the limits of mediation principles, the process and the role of mediators.

Mediation precedent documents should not be altered to accommodate the needs of the court to have information about the process of mediation (and mediators should be aware that this may affect their insurance cover). Mediators should ensure that clients understand, as in any mediation process, that they may waive their legal privilege if they so wish and agree in order to assist them in any court proceedings, but that the mediator will not provide information to the court in regard to the discussions held in mediation.

Resolution thanks Angela Lake-Carroll for writing this good practice guidance, September 2012.

3 See www.resolution.org.uk/site_content_files/files/guidelines_for_mediators_09.pdf and www.judiciary.gov.uk/NR/rdonlyres/01F618CE-48D1-4886-9646-FEB0A886075C/0/ IndependentMediationInformationforJudgesMagistratesandLegalAdvisors.pdf

66 Guides to Good Practice Guide to Good Practice on Dealing With Litigants in Person

1. Introduction

‘All too often the litigant in person is regarded as a problem for judges and the court system rather than a person for whom the system of civil justice exists.’

Lord Woolf, Access to Justice Interim Report, June 1995

‘In a funny sort of way, and this is counterintuitive, I find it is often easier dealing with cases if the parties are appearing as litigants in person because what you are actually getting is the facts of the case as they see it without the assistance, and some people might put that word in inverted commas, of lawyers.’

Mr Justice Munby, Evidence to the Constitutional Affairs Committee on Family Justice: The Operation of the Family Courts, 2004

Subject to the rules on vexatious litigants, anyone is entitled to act in person. However, there is a tendency to treat people who do as a nuisance.

With the cut backs on legal aid it is increasingly likely that you will deal with litigants in person and you should consider how your dealings will differ from those with another lawyer.

2. First contact

2.1 Your first contact with your client’s spouse or partner may set the tone for the way in which the whole case is dealt with. Therefore, it is vitally important to have the Resolution Code of Practice and the ethos behind it at the forefront of your mind.

2.2 The Code does not only apply to your dealings with your client. It applies to everything you do in connection with your family law work. By becoming a member of Resolution, you have committed yourself to adhering to the Code. Resolution can and does deal with complaints from the client’s spouse or partner or, indeed, anyone else involved in the matter such as a judge, barrister or CAFCASS officer.

2.3 Spend a little time thinking about why this person is not instructing a lawyer. It could be because they:

(a) cannot afford to;

(b) think that matters are agreed or very straightforward so that there is no need;

Guides to Good Practice 67 (d) believe that they are capable of dealing with the matter as well as any lawyer.

2.4 If the reason should be from (a)–(c) above it is possible that the person will start off feeling at a disadvantage. They are likely to be totally unfamiliar with the law, procedure and language. They may be particularly sensitive to anything they receive from you and be on the defensive from the beginning.

2.5 When you write your first letter to this person, you may not know what the reasons are for them not instructing a lawyer so you should be sensitive to all of the above.

2.6 You may not know anything about them – their emotional state, the effect of the separation or dispute on them, or their ability to express their feelings or wishes. We are encouraged to consider the stages our client may be going through – shock, grief, anger etc – and we are able to do that by observing and talking to them. We cannot do that with the spouse or partner. We are either forming a view and making judgements based on our client’s instructions or, if we are able to stand back and take an objective view, acting in the dark. Your first letter might be the first indication the recipient has that the dispute is serious. When you write, be aware of the influence of your client’s instructions and try to be sensitive to whatever state the recipient might be in or whatever level of communication they might have or any cultural issues that might affect them.

2.7 Although the latest edition of the Law Society’s Family Law Protocol is silent on the matter, the previous edition contained useful guidance: the initial letter should briefly address the issues and avoid protracted, clearly one-sided and unnecessary arguments or assertions. In drafting the first letter, solicitors must:

(a) where practicable, obtain approval from clients in advance; and

(b) when writing to unrepresented parties, recommend that they seek independent legal advice, and enclose a second copy of the letter to be passed to any solicitor instructed.

2.8 You should strongly recommend that the other party consults a Resolution member, but be sensitive to the fact that they may not be able to afford representation. Many people say that they find such a recommendation threatening and aggressive. If they thought matters were agreed with their spouse or partner, they can construe this recommendation as implying that matters are no longer agreed and that some advantage could be taken of them if they do not seek advice. Therefore, it is important to explain why it might be helpful for them to consult a lawyer and/or refer to this suggestion as being recommended good practice. You could suggest other advice agencies and consider with your client suggesting mediation as, for various reasons, this could be a more effective or appropriate option in certain cases. You could explain that the court office can advise on procedure and refer them to the court service website – www.hmcourts-service.gov.uk.

2.9 You should advise, negotiate and conduct matters so as to help settle differences as quickly as is reasonable for the parties. You should recognise that your client may need time to come to terms with their new situation and so also may their spouse or partner.

Many people say that they feel pressured into responding quickly when time limits for replies or actions are imposed at an early stage. Clearly there may be reasons for speedy action in certain

68 Guides to Good Practice circumstances, but you should advise your client to be sensitive to the time the spouse or partner needs and to allow scope for agreement to be reached. It can be helpful to explain that sometimes matters take time to resolve.

3. Communications generally

3.1 See the Resolution Guide to Good Practice on Correspondence.

3.2 When dealing with someone who is not represented, you should take even greater care to communicate clearly and try to avoid any technical language or legal jargon.

It is very easy to use language that we are very familiar with, without thinking about whether the recipient will understand it. Petition, petitioner, respondent, decree nisi, decree absolute, injunctions, periodical payments etc are not words in everyday use. A litigant in person who is already feeling at a disadvantage may be further intimidated and antagonised by the use of such language. Take care not to give unsolicited legal advice to the litigant in person.

3.3 The Code of Practice says: Avoid use of inflammatory language, both written and spoken.

You should avoid using words or phrases that suggest or cause a dispute where there is none. Emotions are often intense in family disputes. You should avoid inflaming them in any way. You should not express any personal opinions on the behaviour of the other party.

3.4 Correspondence should be carefully considered for its potential effect on other family members. Any communications should aim to resolve issues and settle matters, not antagonise or inflame them. Threats or ultimatums should be avoided.

Paragraph 1.10.3 of the Family Law Protocol Part 1 says ‘patience, courtesy, good humour and an effort to understand why the person is not instructing a lawyer will get you off on “the right foot”.’

Many complaints to Resolution concern the giving of personal opinions and comment. It is easy to be drawn into your client’s case and to feel that you are acting in your client’s best interests by being assertive and criticising the spouse or partner. However, it is unprofessional and does nothing to further the case. It may simply make you and/or your client feel better temporarily. If any comment is absolutely necessary, preface it with ‘My client instructs me that’.

Also, bear in mind, especially when raising a matter for the first time, that your client’s version of events, given to you as fact, may not necessarily be accurate.

3.5 The Code of Practice says that you should encourage clients to put the best interests of the children first. You should keep disputes about finances separate from disputes about children. These matters should be covered in separate letters because children are not bargaining tools and by dealing with finance and children in the same letter it may appear that they are being used as such. It can also make each aspect more difficult to resolve.

The stock answer to complaints that child and money matters have been dealt with in the same letter is that the client is a private client and costs are being kept to a minimum. If a member has

Guides to Good Practice 69 explained to their client at the outset the approach to be taken in the case, the client cannot complain about any additional costs incurred in dealing with such matters in separate letters.

3.6 Care needs to be taken with email correspondence as it is not a secure medium. It is also important to take care, if asked to communicate by fax or email, that the recipient is aware, agrees and can receive faxes or emails in a confidential environment. Complaints have been received that communications were sent to the place of work and were seen by numerous other people first.

4. The petition or other proceedings

4.1 Paragraph 1.11.1 of the Family Law Protocol Part 1 says: ‘Prior to the issue of proceedings of any nature, solicitors acting for applicants or petitioners should notify those acting for respondents (or respondents themselves where unrepresented) of the intention to commence proceedings at least seven days in advance, unless there is good reason not to do so.’

One complaint received by Resolution concerned a member who had dictated a letter saying that her client was willing to negotiate the particulars in the petition, the letter had been held up in a typing backlog and by the time it was sent the petition had been issued. Always check letters before they are sent out.

4.2 The Code of Practice says you should:

• take into account the long-term consequences of actions and communications as well as the short-term implications;

• ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional; and

• make clients aware of the benefits of behaving in a civilised way.

If a particular step may appear hostile or is capable of being misunderstood, you should consider explaining the reasons for that step to the other party.

4.3 Do not lightly/routinely seek costs.

Pay particular attention to claims for costs in divorce petitions. If the claim would not be pursued if the petition proceeds on an undefended basis, make that clear in the petition or at least explain to the spouse in advance so as to avoid it being construed as a hostile act. Explain what other claims, eg for a financial order, may be about and why it is necessary to include them in the petition. These are often seen as hostile acts.

4.4 Try to achieve consensus before issuing any application.

Paragraph 10.2.1 of the Family Law Protocol Part 2 says that you should provide the respondent’s solicitors (or respondent where unrepresented) with the fact or facts on which the petition is to be based and the particulars, with a view to coming to an agreement. Many people report that no attempt has been made to agree divorce particulars in advance. Members may respond by saying that no one in their area ever does it, that it increases costs because of the

70 Guides to Good Practice negotiation that ensues or that they have considered it with their client but decided not to. Of course, it is impossible to disprove this. Some people say that particulars were sent, but that there was no attempt to negotiate. Remember that the benefits of achieving consensus at this early stage could affect the progress of the whole matter. It will show respect to the spouse or partner, allow them some dignity and encourage working together to find solutions, rather than an ‘us and them’ culture. If the couple can work together at this stage they are more likely to be able to work together later when you drop out of the picture.

4.5 Domestic abuse.

The relationship with the spouse or partner can be difficult if there are allegations of domestic abuse. It is essential that such allegations are treated seriously, but it is also important to remain objective and to allow for the possibility that they may be untrue or exaggerated. After advice you may be instructed to write to the spouse or partner to record the incident, demand cessation of the abuse and indicate further action might or will be taken if it does not cease. Many people say that letters demanding cessation feel threatening and raise the temperature, so it is important to be sure that such a statement is truly warranted in the circumstances.

5. Service of proceedings

5.1 See the Resolution Guide to Good Practice on Service.

5.2 If you do not have a private address for service of proceedings on the spouse or partner, it may be tempting to serve them at their place of work or when they collect the children for contact. You should avoid serving them in front of the children because of the potential impact on them. You should consider the impact of serving them at their place of work and whether arrangements can be made for service in a neutral private place.

6. Children disputes

6.1 The Code of Practice says: Encourage clients to put the best interests of children first.

Many complaints to Resolution concern contact disputes. Spouses or partners allege that members have conspired with the parent with care to deny contact and that their actions amount to child abuse. It is to be hoped that the government’s early intervention initiatives will reduce the number of contact disputes, but in the meantime it is important to remain objective and to do as much as possible to ensure that the best interests of the child really are being put first. We should aim to do better than simply trumpet the complaints and aspirations of clients in relation to their children. So often children do not achieve a voice in the processes that resolve the issues that concern them. Practitioners should consider the services, support and sources of guidance that parents and children may need. Most lawyers will want to direct their clients to the Resolution-published Separation and Divorce: helping parents to help children booklet and/or the website www.resolution.org.uk/parentingafterparting and, where accessible, the Parenting after Parting workshops (see www.resolution.org.uk/parentevents) or equivalent services.

Guides to Good Practice 71 Such resources may be particularly helpful for the client’s former partner as forming the basis for a common set of principles / norms. Parents who want to take matters further may want to be referred to books such as Christina McGhee’s Parenting Apart: How separated and divorced parents can raise happy and secure kids (London, Vermilion, 2011).

6.2 Paragraph 5.9.1 of the Family Law Protocol Part 5 says that Forms C100 (and C1A) or other documents should be simply worded using factual, rather than emotive language setting out clearly the order sought. Solicitors should avoid drafting statements using emotive and/ or inflammatory language and/or expressing subjective opinions. A complaint to Resolution involved a C1 alleging violence against the child and stated that the child was on the At Risk Register. Both allegations were false and caused considerable damage. It is accepted that there is a limit to how much cross-checking can be done, but registration is relatively easy to check.

7. Agreements and consent orders

7.1 Some litigants in person complain that they have reached agreement with their spouse or partner, but then when the solicitor is instructed the solicitor insists on full and frank disclosure and/or advises the client that the agreement is unfair and the whole thing falls apart.

7.2 Obviously, you could be found negligent if you do not advise on the dangers of incomplete disclosure and the consequences of financial orders, or on whether the agreement is in the client’s best interests and what other options are available. You need to bear in mind all the implications, including the benefits attached to settling on an amicable basis and the cost, risks and time involved in further negotiations, mediation or litigation (especially if the agreement is within the range that the court might order).

7.3 Your client should be given the options and advised on the implications of each option so that they can make an informed decision. If they accept your advice that disclosure or more disclosure is required before an assessment of the reasonableness of the agreement can be made, then explain to the spouse or partner that you can only act for one of them, recommend that they obtain independent legal advice and explain why you are seeking that disclosure.

8. Contact at court

8.1 You will need to use your own judgement about whether to speak to the litigant in person outside court. It is possible that they will be feeling extremely nervous. Your duty is to represent your client as effectively as you can. You should, however, speak to the litigant in person in such a way as to ensure that you do not give them the opportunity to allege that you have intimidated them.

8.2 If the litigant in person is willing and comfortable talking to you then you may negotiate, but take care to avoid abusing a position of superior knowledge of the law and practice of the courts. For example, it would be acceptable to say ‘Are you prepared to agree to one overnight stay a fortnight?’ but not acceptable to say ‘The courts in this situation would never award more than

72 Guides to Good Practice one overnight stay a fortnight so I suggest you agree. If you insist on fighting it out then the court could award costs against you.’

8.3 If you feel that the litigant in person might allege that you have acted improperly, consider whether it would be appropriate to speak to them in the presence of, for example, a trainee from your firm who has accompanied you to court.

9. Constant harassment

9.1 The spouse or partner is constantly wanting to talk to you on the telephone, faxing you or emailing you several times a day and, at various stages, has accused you of being aggressive, taking your client’s word on everything without checking, not considering the best interests of the children and increasing the costs unnecessarily. Eventually they are personal and abusive or even threatening. Your blood is boiling. What do you do?

9.2 People have complained to Resolution that a member has refused to speak to them or to answer their letters, faxes or emails, or has told them that they do not have to speak to them because they are not their client.

9.3 Try to be civil and polite at all times – however tempting it might be to retaliate.

• Do not shout, threaten, accuse, confront or otherwise act in anything but a professional manner.

• Explain verbally, and confirm in writing, that the costs of your work are dependent on your instructions from your client and that that may dictate the extent to which you can respond.

• Keep a file note of every discussion and confirm any agreements reached or important discussions in writing.

• If the spouse or partner instructs a lawyer, explain that you can no longer discuss matters direct. Make sure that you are clear about the extent of that lawyer’s retainer. If they are only instructed to deal with financial matters, you may still need to deal with the person direct on other issues.

• If a step has been taken which has increased the costs, explain why that step was considered necessary.

• If the litigant in person cannot speak to you without being rude and aggressive, explain that unless they cease that behaviour you will refuse to speak on the telephone and will only correspond with them. Confirm that warning in writing.

9.4 Discuss the problem confidentially with a colleague or use the Resolution mentoring scheme – see the Resolution website for details.

10. Dealing with lay advisers

10.1 The spouse or partner may seek the assistance of an organisation such as Families Need Fathers,

Guides to Good Practice 73 Children Need Fathers or the Equal Parenting Council and ask you to deal with them. Resolution has received complaints that members refuse to deal with such organisations.

10.2 Discuss with your client whether they are happy for you to deal with a lay adviser taking account of the following factors:

• they are not officers of the court;

• they may lack objectivity;

• they may not belong to any professional organisation that regulates their conduct;

• they may not have any professional indemnity; and

• they may not be bound by rules of confidentiality.

If your client is happy for you to deal with a lay adviser, ensure that you have clear instructions as to which issues you can talk to them about and which documents you can disclose to them.

10.3 The right to disclose information to a lay adviser

In Re O (Children): Re W-R (A child): Re W (Children) [2005] EWCA Civ 759, [2005] 2 FCR 563 the court held that:

‘whilst good practice requires the litigant in person to identify and obtain the court’s agreement to his use of a particular McKenzie friend, it should not be considered a contempt of court for a litigant in person to seek advice prior to any application to the court from a proposed McKenzie friend, in the same way that it will be legitimate for a litigant in person to consult an organisation such as the Citizens’ Advice Bureau, or Families Need Fathers, or a particular mediation service. In seeking that advice, we are of the opinion that it is not a contempt if the litigant in person shows court documents to the person from whom the advice is being sought. The critical point is that those to whom the documents are shown appreciate that they are being shown the documents for the purpose of giving advice, and that wider dissemination of the documents is not permissible.’

The Family Procedure Rules 2010 provide that a party may communicate any information relating to the proceedings to any person where necessary to enable that party, by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings.

Note 1. This good practice guidance does not and cannot affect any obligations in law, specific court orders or rules of professional conduct.

3. This guidance applies to all family law cases for the better conduct and approach of family breakdown issues, and not just to cases between Resolution members.

74 Guides to Good Practice Good Practice Guide for Collaborative Professionals

The committee of the Cambridge Collaborative Family Law Group has drafted the following good practice guide as a means of encouraging best practice within the POD, and Resolution’s ADR committee is delighted to adopt it as national good practice advice. It is not meant to be a straightjacket, but to encourage members where possible to approach our collaborative cases with a consistent approach that meets the highest standard of collaborative practice.

1. Involvement of third parties

Resolution feels that it is best practice for collaborative lawyers to consider, at the outset, and as the case progresses, whether it would be appropriate for one or both of the parties to seek the assistance of a family consultant, whether solely or jointly and if so, to encourage the parties actively to consider this involvement as a means to improving communication, and providing emotional support and practical advice in developing the co-parenting relationship.

As part of ensuring that financial disclosure is dealt with as efficiently and cost effectively as possible, and that the disclosure is as complete as possible, the use of financial experts should be encouraged, with the collaborative lawyers communicating, at an early stage, as to what financial involvement may be needed, for example:

• to assist with the collation of financial disclosure and budgets;

• to value assets, eg businesses, and consider discrete points such as liquidity;

• to assist with discussions about the financial options; and

• to advise on and investigate any particular points, such as pension sharing.

2. Before the first four-way meeting

Our experience shows that the better prepared the clients (and the collaborative lawyers) are for the collaborative process, the more successful the process is likely to be. Before the first four-way each client should have had a copy of, and be familiar with, the participation agreement.

3. Timeline for each four-way meeting

The timelines for each of our four-way meetings should be:

Guides to Good Practice 75 1. A pre-meeting between collaborative lawyers. (Collaborative lawyers should be encouraged for this to take place face to face wherever practical and in any event at least 24 hours before the four-way meeting. The lawyers should consider what the agenda is going to be for the meeting, together with practicalities, such as dynamics of the room and who addresses which item on the agenda.)

2. A pre-meeting between each collaborative lawyer and their client (best practice is for this not to take place immediately before the four-way).

3. The four-way meeting.

4. Debrief meeting between collaborative lawyers, ideally face to face if possible, immediately after meeting and in any event within 24 hours of the meeting.

5. Debrief meeting between each collaborative lawyer and their own client, again ideally face to face and shortly after the meeting.

6. Minutes prepared, ideally within 48 hours of the meeting, or in any event within seven days.

4. The first and subsequent four-way meetings

Resolution believes that it is best practice:

• For the participation agreement to be signed within the first meeting, even if it is towards the end of that meeting. In exceptional circumstances, it may be appropriate for the signing of the participation agreement to be held over to the next meeting, but if a case is to be conducted collaboratively it should be signed by the start of the second four-way meeting at the latest.

• For the minutes of four-way meetings to be prepared by the collaborative lawyers on a shared basis (often alternating) and for those minutes to be prepared and circulated to all parties within 48 hours of the four-way meeting if practical, and in any event, no longer than one week after the meeting.

• To consider whether, if agreed between all parties, it would be appropriate for a junior solicitor/ trainee from one of the solicitors’ firms, or a less experienced collaborative lawyer within the POD, to attend four-way meetings and to prepare the note of the meeting. (The junior solicitor/ trainee/collaborative lawyer is to be present as note-taker and not as a contributor to the discussions.) For the avoidance of doubt, the responsibility for the accuracy of the minutes remains with the collaborative lawyers.

• In the first four-way meeting, for each of the parties to share their “anchor statement”. Whether the anchor statement is verbal or in writing would be discussed between the collaborative lawyers at the pre-meeting.

• For no four-way meeting to last longer than two to three hours, as energy levels and concentration start to wane beyond this point; on occasions a four-way meeting may be much shorter than this (eg a first four-way).

76 Guides to Good Practice • At the beginning of any four-way meeting, for there to be a dialogue as to how long that meeting should last and what practical implications there are on this, eg the need to collect children from school.

• For “creature comforts” to be met at the meeting - so for food and drink to be provided.

• For a series of four-way meetings to be fixed during the course of the first four-way, but if this is not practical, then at least for the next four-way meeting to be fixed.

• For the agenda for the subsequent four-way meeting to be agreed, at least in broad terms, at the conclusion of each meeting.

• Unless there is a particular reason not to, on circulating the minutes of the meeting, for the minutes to be circulated to everyone at the meeting at the same time once approved by the two lawyers.

• For minutes of meetings to reflect the ebb and flow of the discussions, with headings and summaries being used to make the minutes more client-friendly. There is no need for the minutes to be a verbatim note.

• If a client or one of the collaborative lawyers has comments on the minutes of a particular four- way meeting, for these to be dealt with at the start of the next meeting and for the minutes to be agreed and then signed by all parties.

• Best practice is for there not to be correspondence but for all communication to take place verbally whether by way of preparation for a meeting or within the four-way meeting itself. Communication between meetings in email or in correspondence should be limited to administrative matters, such as the timing of subsequent meetings, the circulation of minutes and perhaps, if agreed during a four-way meeting, the circulation of financial information or paperwork.

5. Financial disclosure

The collaborative process is not an excuse for a lower standard of financial disclosure. The following may be regarded as best practice:

• Financial disclosure should be as full as possible, but there should be flexibility on the form the financial disclosure takes.

• The preference is for a form E to be used (up to and including the summary and schedule of outgoings, but not section 4) and if a form E is not to be used, the reasons for this and the agreement to it by both clients should be minuted.

• It should be specifically agreed (and minuted) whether a form E is to be sworn or unsworn.

• The timetabling of financial disclosure should be discussed as early as possible. It may be appropriate, in certain circumstances, for the financial disclosure to be collated before the first four-way meeting and brought to that meeting for discussion.

Guides to Good Practice 77 • When timetabling financial disclosure consider, for example, the amount of time needed to obtain certain financial information (eg CEs of pensions) and manage the timetabling of disclosure so that, if at all possible, the process is not held up whilst information from third parties is awaited.

6. Discussing options and possible outcomes in the collaborative process

This can be one of the most difficult aspects of a collaborative case. Resolution believes that best practice is:

For the collaborative lawyers during their pre-meeting:

• To discuss and agree what legal information needs to be given and to “agree” the communication of this information; collaborative lawyers should not give legal advice away from the four-way meeting that they would not be prepared to share within the meeting.

• To discuss their own views as to the parameters for the particular set of circumstances. If the collaborative lawyers do not agree on the brackets, then in the pre-meeting they should discuss and agree how they are going to address their differences and present it to the clients in the four-way meeting.

During the “crunchy” four-way:

• For clients’ expectations to be managed at an early stage as to what it is likely to be possible to achieve so that a client appreciates, for example, that it may not be realistic to negotiate a financial outcome in one meeting.

• To acknowledge at the start of a meeting at which options are going to be considered that the meeting is likely to be difficult, recognise the progress that has been made thus far and, if appropriate, revisit the anchor statements.

• For clients to be reminded that any differing legal views are to be respected.

• For all of the possible options to be discussed with the clients, even if they are options the collaborative lawyers have thought of, not the clients.

• For consideration to be given to the use of flip charts, excel spreadsheets, “parking” ideas and breaks to ensure that as many options are looked at as possible.

• If a second meeting to discuss options is needed, for the minutes of the first meeting to summarise the broad areas of consensus, the areas of uncertainty and the areas which are not discussed so that when considering the minutes of the meeting, the clients can reflect on and review the discussions thus far.

If it is possible to reach consensus, then at the end of the meeting there should be a summary of the points that have been agreed. It is important to consider other issues, eg divorce (including timetable and basis for divorce) and how the consensus is going to be implemented.

78 Guides to Good Practice The parties should agree a timeframe within which the clients have the opportunity to reflect on the consensus reached. Best practice would be for this to be seven days from when the minutes of the meeting are received.

In a financial case, for one of the collaborative lawyers to prepare the minutes of the meeting in which consensus was reached, and for there then to be an agreed timeframe, to start after the minutes of the meeting have been produced for (a) the period of reflection and (b) the minutes of the consent order to be clarified, together with the statements of information for a consent order.

It is good practice for there to be a meeting to discuss the consensus reached and any points arising after the period of reflection and consideration, together with the minutes of the consent order.

The minutes of the consent order should be sent to the collaborative lawyers and to clients no less than four days before the meeting to allow a pre-meeting between the collaborative lawyers to discuss the detail of the minutes of the consent order and agree what, if any, substantive or drafting issues need to be discussed with the clients.

The minutes of the consent order should not refer to “husband” and “wife” (following the recent indications from the courts on this) but “Petitioner” and “Respondent”.

At a meeting to discuss the minutes of the consent order, there should be careful exploration of the order, with legal information being given as to the meaning of each clause. This explanation will need to include the meaning of “without prejudice” and “open” agreements and a discussion as to when the without prejudice agreement becomes open.

The minutes of the consent order should be signed at the conclusion of the meeting, provided any handwritten amendments to the document are minimal, and also provided there has been an opportunity for the clients to have had a period of reflection on the agreement reached. If the minutes of the consent order are signed then a copy should be given to both clients and the collaborative lawyers to take away. (If the amendments required are substantial then a further meeting is not required to sign a clean/amended copy.)

Statements of information should be discussed at the same time as the minutes of the consent order and preferably be a joint document.

The discussions should remain without prejudice until the minutes of the consent order have been signed.

7. Action to be taken following the conclusion of an agreement

In what is likely to be the last four-way meeting, best practice would be for agenda items to include:

• an acknowledgment of the hard work that all parties have put in;

• dealing with any other issues, for example how the interim situation is going to be dealt with, pending implementation of an order, eg sale of house; and

Guides to Good Practice 79 • if there are children, consideration as to any practical implications of the agreement for the children, eg how they are going to be told about the financial outcome.

At the end of a collaborative case it is best practice for there to be an opportunity for both clients and collaborative professionals independently, but ideally together, to have a debrief on how the process has gone. Between the collaborative professionals there should be a frank and constructive dialogue as to how the collaborative process has gone. This debrief should take place within 48 hours of the final meeting and clients should not normally be charged for such a debrief.

Ideally during the debrief, agreement should be reached between the collaborative professionals as to how to complete the Resolution form, which is required to be completed at the conclusion of a collaborative case.

8. Action to be taken if the collaborative process breaks down

If the collaborative process breaks down:

8.1 We must adhere to the fundamental principle of the process and the collaborative lawyers will cease to act and not advise the client in any other process.

8.2 The collaborative lawyers will write a joint letter to any other collaborative professional who has been involved explaining that the process has broken down and come to an end.

8.3 The collaborative lawyers will send their respective clients a joint letter explaining the consequences of the breakdown of the process and the status of the discussions during the process; the financial disclosure and information given; and the minutes of the four-way meetings.

8.4 The collaborative lawyers will discuss with their clients and then with each other (and any other professionals involved) the reasons why the process broke down and any lessons that can be learned.

80 Guides to Good Practice Guide to Good Practice on Client Care Letters

1. Introduction: drafting a client care letter

The SRA Handbook (4th version), which came into effect on 21 June 2012, has introduced outcome- focused regulation (OFR). This has replaced the previous detailed rules governing client care letters (see www.sra.org.uk/handbook).

This general guide is an attempt to summarise the key points to consider when drafting a client care letter, and goes on to consider standard terms of business documents and their essential features.

Essentially a good letter will:

• Clearly identify the client: the anti-money-laundering regulations (see the Law Society’s anti- money-laundering practice note, and anti-terrorism practice note) require that client due diligence should be carried out throughout the life of the retainer with the client, that any change in the retainer or instructions should be monitored to check continued compliance, and that identity information should be kept up to date. Some firms include a reference, in a separate document containing terms of business, to the fact that from time to time the client may be asked to supply further verification of identity information after the initial retainer has been agreed.

• Identify the client’s objectives.

• Clarify the issues involved and the options available.

• State what the solicitor is instructed to do next (and what the solicitor will not be doing), wherever possible giving timescales.

Eg: ‘You have asked me to draft a letter to your husband, and I confirm that I will be able to let you have a first draft early next week.’

Eg: ‘Although tax issues may arise during the course of the work that I undertake for you, I will not be giving specialist tax advice and will identify situations in which you should take such specialist advice.’

Give an overall estimate of costs, broken down between fees, VAT and disbursements. Care needs to be taken in identifying costs that are a combination of disbursements and profit – for example, bank telegraphic transfer fees which contain an element of profit as well as a disbursement fee paid to the bank, or outsourced photocopying, the cost of which is marked up when charged to the client. Telegraphic Transfer fees are specifically dealt with in the Law Society practice note issued 30 July 2008. Where a telegraphic transfer fee incorporates a disbursement fee paid to the bank and the firm charges a fee plus VAT for arranging the telegraphic transfer, that must be separately identified from the disbursements.

All costs information must be provided in writing.

Written information must make it clear how charges are calculated, including outlining:

• The basis for the fixed fee or relevant hourly rates and an estimate of the time to be charged.

• Whether rates may be increased during the period of the retainer.

Guides to Good Practice 81 • Expected disbursements and likely timeframes for these being due.

• Potential liability for others’ costs, where relevant.

• VAT liability.

The letter must confirm with the client how and when any costs are to be paid. In doing so, consideration must be given to the following:

• Eligibility for legal aid at the outset, and also continuing to monitor eligibility if there is a change in circumstance, or the client’s financial situation changes (see David Truex, Solicitor (A Firm) v Kitchin [2007] EWCA Civ 618).

• Possibility of a conditional fee agreement.

• The existence of any legal expenses insurance that could cover the client’s or another person’s costs.

• Seeking payment of costs from another person.

• You must provide costs information to the client even where the client will not themselves be paying for your services, eg if they are publicly funded.

• You must outline circumstances in which the client may be liable for the costs of other parties, including where they are successful and obtain an award for costs.

• You must advise the client that a lien can be exercised over their papers for unpaid costs. The Law Society indicate that this can be done in the retainer or engagement letter, or in a separate terms of business document with respect to terminating the retainer.

• The letter should outline the firm’s standard billing arrangements, and discuss any requirements for receiving funds on account. Solicitors’ client account details should not be provided until a client’s identity has been confirmed.

• The letter should, in appropriate cases, explain that the client may set an upper limit on the costs the firm may incur without obtaining further authority.

• Give the name and status of the person who will be dealing with the matter in the firm and the name of the principal responsible for the overall supervision.

• The letter should also include the name, status, and charge rate of any person to whom work might be delegated under the supervision of the person with day-to-day conduct. It is good practice to identify in the narrative to invoices the identity of each fee earner who has carried out work, their status and hourly rate, as well as time taken.

• Give the name and status of the person whom the client should approach if there is a problem.

• Use clear, easy to understand English.

• Send at the earliest opportunity to ensure compliance with regulatory obligations. There may well be exceptions where there are urgent instructions to act immediately – for example in relation to the client’s personal safety, or applications for freezing orders etc.

82 Guides to Good Practice 2. Terms of business

The above is information relevant to the individual solicitor/client retainer. The Law Society indicates that most firms will have separate, standard terms of business documents or precedent paragraphs that cover all the applicable points to which a client must be referred as well as the specific scope of the retainer, cost estimate etc.

Essential features of a terms of business document

There should be an appropriate level of service confirmed in writing. Service standards may include:

• Updating the client by telephone or in writing regularly, fortnightly, monthly, following agreed events or when necessary. The Law Society believes that updating a client should occur at least every six weeks unless agreed to the contrary or the retainer dictates more regular updates.

• Updates on the cost of the matter monthly, three monthly, six monthly, at agreed events, or when appropriate.

• A cost/benefit analysis update – ie whether the likely outcomes still justify the likely costs and risks associated with the matter – whenever there is a material change in circumstance or more information becomes known.

Review whether there are alternative methods by which the client can fund legal advice (see David Truex, Solicitor (A Firm) v Kitchin [2007] EWCA Civ 618, [2007] 2 FLR 1203).

3. Responsibilities

You must explain to the client the respective responsibilities of the solicitor and client in relation to the particular retainer. These should be confirmed in writing. The Law Society gives examples of the solicitor’s responsibilities as follows:

• Reviewing each matter regularly (see above).

• Advising of any changes in the law.

• Advising of any circumstances of risk of which you are aware or consider to be reasonably foreseeable that could affect the outcome of a client’s matter.

The client’s responsibilities may include:

• Providing the solicitor with clear, timely and accurate instructions.

• Providing all documentation required to complete the retainer/ transaction in a timely manner.

• Safeguarding any documents which are likely to be required for discovery. (It is good practice to let clients know at the outset of the likely documents that they will need to produce as evidence for form E in financial remedy proceedings, and documents subject to discovery in Civil Procedure Rules cases.)

Guides to Good Practice 83 4. Hours of business

You should advise the client of the firm’s normal opening hours and details of any emergency or out- of-hours service provided.

5. Equality and diversity

Rule 6.03 of the Code of Conduct provides that the firm must have an equality and diversity policy and make it available when requested. The client should know that such a policy exists, and that they can ask for a copy.

6. Data protection

Firms must comply with the Data Protection Act 1988 with respect to information held on the client. Reference to compliance with the Data Protection Act should be included in the firm’s terms of business.

7. Storage of documents

• You should advise the client how long you will retain the file and explain what will happen to the file after that time.

• You should advise the client of costs related to storage, retrieval and additional copies supplied to the client or third parties at their request.

• If documents are to be stored in an electronic format, you should first consider whether the absence of paper documents will be detrimental to the client’s interests before you agree to such storage methods with your client. You should also consider any file retention requirements of your indemnity insurers when assessing the appropriate length of time to retain client files – for example, where court orders provide lifetime maintenance obligations family lawyers should consider making sure that files are not destroyed until after the parties’ life expectancy in case there is a variation application.

• You should explain that the firm is entitled to keep papers and documents where money is still owed by the client for fees and expenses after determination of the retainer.

8. Outsourcing of work

Where typing/photocopying or other work is outsourced on files, the Law Society recommends that there should be a confidentiality agreement with any outsource suppliers. In the terms of business document, the Law Society recommends that you should:

• Advise the client that the practice outsources work and the type of work it outsources.

84 Guides to Good Practice • Alert the client to the potential risks in relation to preserving client confidentiality and ask the client to tell you if they object to this practice.

9. Vetting of files and confidentiality

Where files are required to be produced to assessors or others as part of an audit or quality check you should advise your client of this. This could be as an audit takes place, or preferably in a terms of business document so that the notice to a client is not overlooked.

10. Limiting liability

Rule 2.07 of the Code of Conduct allows firms to limit liability under certain circumstances. Firms must ensure that clients are advised of any limitation of liability in writing and specifically draw their attention to it. The effectiveness of a standard clause when the client is a consumer is in doubt. In an appropriate case, consider negotiating a specific limitation. Where the practice is an LLP, the terms of business should explain any limitation on personal liability for the members, directors and employees in the practice.

11. Applicable law

You may specifically state that the law of England and Wales applies to any disputes over the terms and conditions of the retainer with the client, particularly if there is any international aspect to the retainer.

12. Terminating the retainer

The terms of business should clearly state the manner in which a client can terminate your retainer and the consequences of so doing. The terms of business should also outline the circumstances under which the solicitor can terminate the retainer, in accordance with Rule 2.01 (this is likely to be an appropriate place to raise the issue of a right to a lien for unpaid costs).

13. Payment of commissions

A firm must not make a secret profit from a relationship with a client. Rule 2.06 of the Code of Conduct provides for the payment of any commission over £20 to a client unless they have been told the amount and they agree to the firm keeping it.

14. Payment of interest

The Solicitors’ Accounts Rules provide that firms must account to clients for any interest earned on client money. A terms of business document should advise the client of any circumstances where interest will be payable to them, and how and when the firm will account to them for it.

Guides to Good Practice 85 15. Distance selling

If a solicitor has not met the client, the firm must consider whether the Consumer Protection (Distance Selling) Regulations 2000 apply. These regulations provide for a period during which a client can cancel their instructions without costs. You should include information about this right in the terms of business. For further information on distance selling requirements, see the Office of Fair Trading website.

16. Financial services

If a practice is authorised by the Financial Services Authority (FSA), the firm must ensure that it complies with the requirements of the FSA as to status disclosure statements in the terms of business.

86 Guides to Good Practice Precedent letter of engagement

PLEASE NOTE: These precedent terms are intended to be a guide only and will need to be adapted to suit each individual firm’s requirements, and separate considerations and letters will be needed for clients engaging in mediation or the collaborative process. They assume the firm has a separate standard terms of engagement document. Reference should be made to the SRA’s new Handbook and to the general law. In particular, careful consideration should be given to the developing case law on the effect of costs estimates (eg Mastercigars Direct Ltd v Withers LLP [2007] EWHC 2733, [2009] EWHC 651 (Ch) and Reynolds v Stone Rowe Brewer [2008] EWHC 497 (QB)). In addition, see the decision in Cawdery Kaye Fireman & Taylor v Minkin [2012] EWCA Civ 546, which concerned the grounds that entitle a solicitor to suspend and/or terminate a retainer on the basis of non-payment of costs, and the costs payable by the client in such an event.

Dear [ ]

Letter of engagement

Thank you for your instructions. This letter of engagement sets out the basis on which [insert firm name] will act for you. Please read this letter and the enclosed terms of engagement carefully. When you have read this letter and its enclosures, please sign and return the enclosed duplicate in the pre- paid envelope to confirm your agreement to its terms. If you have any queries or comments, please do not hesitate to contact me.The terms set out in this letter and in the enclosed terms of engagement will, if relevant and unless otherwise agreed, apply to any other matters on which you instruct the firm in the future. Accordingly, these will not necessarily be repeated in any future letter of engagement.

Details of the matter/scope of work

All cases are different and the firm’s approach to your case may change as the case goes on. I set out below the sort of work that I would normally expect to be done in a case such as yours. Specific discussions about your particular objectives, the issues involved in your situation, the options available to you and the next steps to be taken in your case have been or will be covered in our first meeting or telephone discussion. If you are unclear about any of that following our meeting or telephone conversation, please tell me.

[Insert one or more of the seven work types below amended as necessary, or insert bespoke work type.]

[1 – Divorce cases

In carrying out the work on your case I would normally expect to advise you on the legal issues relating to your relationship difficulties. These may include the law relating to divorce proceedings, financial settlements on divorce/separation and issues regarding the arrangements for any children. I will usually prepare the necessary court documents, including financial disclosure (I explain what this means later in this letter). I may recommend that you take advice from other legal professionals about related issues such as making a will, dealing with trusts or changing death benefit nominations. These will be dealt with separately from the work to which this letter relates. If the case requires detailed and specific advice in relation to property or business valuations, tax issues, pension valuations, investment advice or foreign legal issues, I will need to involve a suitably qualified valuer, accountant, tax lawyer, independent financial adviser, pensions expert or overseas lawyer. I will discuss this with you before any third party is involved in your case. If it is necessary for matters to be taken to court, this firm will

Guides to Good Practice 87 represent you at interim court hearings. If you require a full court hearing, I will instruct a barrister to represent you. I may also instruct a barrister to provide an opinion on relevant issues. Again, I will discuss this with you before a barrister is involved.]

[2 – Section 8 children (stand alone, ie no divorce/TLATA as well)

In carrying out the work on your case I would expect to advise you on legal issues such as with whom your child(ren) should live, how much contact the child(ren) should have with each parent, and any other specific issues such as where the child(ren) should be educated. I may also suggest that you obtain further advice from others about related issues which will be dealt with separately from the work that this letter relates to, for example making a will or changing any death benefit nominations. I will, if necessary, prepare any court documents on your behalf.

This firm will represent you at any interim court hearings, and otherwise I will instruct a barrister to represent you if necessary. I may also instruct a barrister to provide an opinion on relevant issues. I will discuss this with you before a barrister is involved.]

[3 – Leave to remove

In carrying out the work on your case I would expect to advise you on the court’s approach to permitting children to leave England or Wales permanently, and the practical and legal consequences of an order being made. I will usually prepare the necessary court documents in your case. This firm will represent you at any interim court hearings, and otherwise I will instruct a barrister to represent you if necessary. I may also instruct a barrister to provide an opinion on relevant issues. I will discuss this with you before a barrister is involved.]

[4 – Schedule 1 children

In carrying out the work on your case I would expect to advise you on the law relating to financial provision for children of unmarried parents. I may also suggest that you obtain further advice from others about related issues which will be dealt with separately from the work that this letter relates to, for example making a will or changing any death benefit nominations. I will usually prepare any necessary court documents and advise you about the court procedure involved in a claim for financial provision for children.

This firm will represent you at any interim court hearings, and otherwise I will instruct a barrister to represent you. I may also instruct a barrister to provide an opinion on relevant issues. I will discuss this with you before a barrister is involved.]

[5 Cohabitees/TLATA

In carrying out the work on your case I would expect to advise you on the legal issues relating to your relationship difficulties. These include the law relating to the ownership of property and other assets owned by you or your partner and in which either of you may have an interest, and (if relevant) issues relating to any children.]

I may also suggest that you obtain further advice from others about related issues which will be dealt with separately from the work that this letter relates to, such as making a will or changing any death benefit nominations. If the case requires detailed and specific advice in relation to property valuations, tax related issues, foreign legal issues or investment advice I will need to involve a suitably qualified valuer, accountant, foreign lawyer and/or independent financial adviser. I will discuss this with you before any third party is involved.

88 Guides to Good Practice This firm will represent you at court at any interim hearings, and otherwise I will instruct a barrister to represent you if necessary. I may also instruct a barrister to provide an opinion on relevant issues. I will discuss this with you before a barrister is involved.]

[6 – Cohabitation agreement

In carrying out the work on your case, I would expect to advise on issues relating to the validity and relevance of the cohabitation agreement, the law relating to the ownership of property and other assets owned by you or your partner and in which you or your partner may have an interest, and issues regarding the arrangements for children (if relevant). I may also suggest that you obtain further advice from others about related issues, which will be dealt with separately from the work that this letter relates to, for example making a will or changing any death benefit nominations. I would usually expect to draft the cohabitation agreement for you, or to comment on a draft prepared by the lawyer acting for your partner, and to assist as required with negotiating any terms in dispute, finalising and executing the agreement. I may instruct a barrister to assist with the drafting of the agreement and advise on the enforceability of its terms. I will discuss this with you before a barrister is involved.]

[7 – Pre-marital agreement

In carrying out the work on your case I would expect to advise you on issues relating to the validity and relevance of a pre-marital agreement in England and Wales, and to draft an appropriate agreement taking into account the instructions that you give to me or to comment on a draft prepared by the lawyer acting for your fiancé/e, and to assist as required with negotiating any terms in dispute, finalising and executing the agreement. If another jurisdiction is involved, for example if you or your fiancé/e live in another country or are a citizen of another country, then I will need to involve a suitably qualified foreign lawyer to advise on the validity, relevance and terms of a pre-marital agreement in that country. I will advise you on whether you should have an agreement in either or both countries (from an English law perspective) and a foreign lawyer will advise you on the same issue based on the law in that country. I may instruct a barrister to assist with the drafting of the agreement and advise on the enforceability of its terms. I will discuss this with you before a barrister is involved. I may also suggest that you obtain further advice from others about related issues which will be dealt with separately from the work that this letter relates to, for example making a will or changing any death benefit nominations.]

Non-court methods of dispute resolution – collaborative law and mediation

Collaborative law is a constructive way of resolving family law issues such as divorce, separation and parenting issues. It is a good option for those who wish to avoid the uncertainties and prescribed approach of the court-based system. It allows those involved in family law disputes to benefit from expert legal advice in the knowledge that all negotiations are dealt with outside the court system. In this way, you and your former partner and your respective lawyers work together to find the best solutions. Both of you will work with specially trained collaborative lawyers. If your case is to be dealt with in this way, you will be guided through the collaborative process, and assisted to resolve issues through a series of face-to- face meetings. All those involved (including your legal representative) sign an agreement preventing the collaborative lawyers from representing either person at court, should the collaborative process break down. If you would like further information about this, please do let me know.

Mediation is a process whereby you and your partner meet with an independent third-party mediator. The mediator facilitates discussions between you to encourage you to reach agreement about whatever issues you both wish to discuss. It is usually sensible to receive legal advice during the mediation process to ensure you are well informed about your legal position. We can advise, assist and support

Guides to Good Practice 89 you during mediation. We can also let you have details of mediators that we can refer you to. You will be encouraged to consider mediation before starting any court proceedings.

People responsible for your work

I will be in charge of the day-to-day handling of the matter and will carry out the majority of the work involved. I am a [solicitor][solicitor and partner] in the firm’s family and matrimonial team specialising in work of this nature. If I am not available at any time, please contact [insert secretary’s name and DDI] who will either take a message or refer you to someone else if the matter needs immediate attention. I set out below my own direct dial telephone number, and the names, status and telephone numbers of my colleagues in the family law team. I can usually be contacted by telephone between the hours of [ ]am and [ ]pm each day.

[From time to time, any of the team may be asked to work on your case, but I propose to ask [insert name of fee earner] primarily to assist me./I shall be principally running your file, but I will be closely supervised by [insert name of partner].] They will be familiar with your file and will able to answer any questions you may have. You should contact them if you have any specific queries and I am out of the office. I also set out the hourly charge out rates of each person in the team. The basis of charging is set out further below.

Fee earner Grade Contact number Hourly rate (exclusive of VAT)

Rates may be subject to change on an annual basis. You will be notified of any change to the rates or to the frequency of the review. From time to time, specialist advice may be sought from other members of the firm, either in this office or one of the other offices. I may discuss issues arising in your case with colleagues. In addition, where work can be undertaken more cost effectively by a more junior member of staff, work may be delegated accordingly. Those members of staff may or may not be legally qualified but will, at all times, be properly supervised. [Insert name of client partner] will be responsible for managing our overall working relationship. Details of that role are set out in the attached terms of engagement.

90 Guides to Good Practice Billing policy at [Insert name of firm]

[Consider summarising details from attached terms of business – the following paragraphs are suggestions only] You will be sent bills on a monthly basis and a final bill on completion of your matter. All bills are due for payment on receipt. The firm reserves the right to suspend or terminate further work until payment is received. If an invoice remains unpaid for 30 days after the date of the invoice, the firm reserves the right to charge interest on part or all of the bill. Please see the attached terms of engagement for further details of payment terms, including the circumstances in which the firm may exercise a lien for unpaid costs. If you have any query about a bill you should contact me [or the client partner] straight away. (A lien means that we can keep the file, and not release it, until our fees are fully paid.)

You have a right if you wish to object to your bill and apply for an assessment of it under Part 3 of the Solicitors Act 1974. Further, you have a right to complain about your bill to the Legal Ombudsman on 0300 555 0333.

Costs

The firm’s charges, like those of most solicitors, are based on a number of different factors. These include the time spent, the skills, specialised knowledge and responsibility required of the members of the firm handling your matter, the complexity and difficulty of the questions involved, and the circumstances in which the work is carried out. Examples of this would be if, due to the urgency, evening or weekend work is required or if an unusually large amount of documentation needs to be considered.

The most important of these factors is the amount of time spent by members of the firm in dealing with your case. The firm has a computer-based time recording system on which each member of the firm records the time spent on your case. Each individual has an hourly charge out rate (as set out above). Charge out rates will apply to all the work done on your case, including time spent on the telephone, reading incoming post or emails, preparing or dictating outgoing letters or emails, preparing file notes of meetings, considering and drafting documents, reviewing your file, considering your case, preparing instructions and briefs to barristers, researching law where necessary, attending conferences with barristers, attending court, attending meetings with you, attending meetings with the lawyers acting for the other person in your case or other people connected with the case, taking statements from witnesses and any other time spent in connection with your matter.

As well as the charges for time spent on your matter, incidental expenses (called disbursements) such as the fees of any barristers or experts, court fees, photocopying charges, travel expenses, courier costs and any other expenses will be added to the invoice.

[Consider using one of the following three inclusions if the matter involves (1) financial remedy proceedings, (2) cohabitation/pre-marital agreements, or (3) Children Act proceedings]

[Inclusion 1 – for financial remedy cases]

The firm’s charges are not contingent upon the result of your case. They are payable in any event. You are primarily liable for the charges. Even if the court orders someone else to pay your costs, you will have to pay in the first instance and may then be reimbursed when the funds clear from the person ordered to pay your costs. If your costs are being paid by a third party, such as a friend or family member, you still remain primarily liable to the firm for those fees. If you have any questions about your costs, please do discuss them with me.

In cases involving court proceedings it is always difficult to forecast the amount of time that will be spent since much will depend on the attitude of the other person in your case and their solicitors, the

Guides to Good Practice 91 volume and complexity of the documents disclosed and the time required for preparation and in court. Based on the information you have given me so far, the costs in your case are likely to fall within one of the following ranges, depending on how your case develops (please note these figures relate to your costs only and not those of the other person in your case):

BAND 1 – up to £[ ] including VAT and disbursements

This band will apply if a financial settlement is concluded after disclosure on a voluntary basis and negotiation between solicitors without formal financial remedy proceedings. This estimate assumes that the other person is not untruthful in their disclosure and not generally obstructive, that no interim hearings (for example for interim maintenance) are required and that there are no international legal issues that require the assistance of a foreign lawyer. If any of these elements arise, this estimate will increase.

BAND 2 – up to £[ ] including VAT and disbursements

This band will apply if financial remedy proceedings are issued in order to achieve a financial settlement, and are concluded part way through by agreement or require a financial dispute resolution hearing (FDR). This estimate assumes that a barrister will be briefed to represent you at the FDR, that input from an accountant is not required, that the other person is not untruthful in their disclosure and is not generally obstructive, that no interim hearings other than the two standard interim hearings (First Directions Appointment (FDA) and FDR) are required, for example there is no need for an interim maintenance hearing, and that there are no international legal issues that require the assistance of a foreign lawyer. If any of these elements arise this estimate will increase.

BAND 3 – up to £[ ] including VAT and disbursements

This band will apply if financial remedy proceedings are issued in order to achieve a financial settlement, and may require a final hearing of no more than two days. This estimate assumes that a barrister will be briefed to represent you at the FDR and at the final hearing, that input from an accountant is not required, that the other person is not untruthful in their disclosure and is not generally obstructive, that no interim hearings other than the two standard interim hearings (FDA and FDR) are required, for example there is no need for an interim maintenance hearing, and that there are no international legal issues that require the assistance of a foreign lawyer. If any of these elements arise this estimate will increase.

BAND 4 – up to £[ ] including VAT and disbursements

This band will apply if financial remedy proceedings are issued in order to achieve a financial settlement and require a final hearing of more than two days, because they have not been settled by agreement. This estimate assumes that a barrister will be briefed to represent you at the FDR and at the final hearing, that an accountant or other professional is required, that the other person is not untruthful in their disclosure and is not generally obstructive, that no interim hearings other than the two standard interim hearings (FDA and FDR) are required, for example there is no need for an interim maintenance hearing, and that there are no international legal issues that require the assistance of a foreign lawyer. If any of these elements arise this estimate will increase.

92 Guides to Good Practice BAND 5 – over £[ ] including VAT and disbursements

This band will apply if financial remedy proceedings are issued in order to resolve the financial settlement, input from a barrister and an accountant is required, there is significant non-disclosure by the other person and/or they are particularly obstructive, there are interim hearings on ancillary issues related to the financial settlement and/or there are international legal issues that require the assistance of a foreign lawyer.

Based on the information you have given me, I am required to advise you about the likely level of your costs and the balance of likely outcome as against expense and risk. I believe that it is likely that your case will fall within band [insert band number – or elaborate on specific details]. As every case is different, you will appreciate that it is very difficult to give one specific and accurate estimate. I will update you each month when I send you my firm’s monthly invoice as to your costs position and whether this estimate is likely to change. If insufficient fees have been incurred to justify the raising of an invoice in any particular month and you wish me to review your costs position anyway, please just let me know. I believe also that the potential outcome of your case [does/does not] justify the expense or risk involved (including the risk that you might have to pay another person’s cost) [for the reasons set out in my letter of [date]/because [insert reasons]]. When I send you my firm’s monthly invoice I will also update you specifically about the issue of whether the potential outcome of your case will justify the expense or risk involved (including the risk that you might have to pay another person’s costs). In addition to counsel’s fees and the other disbursements mentioned above, there are court fees payable when proceedings are issued. At present these are:

To issue a divorce petition £340

To apply for decree absolute £45

To issue financial proceedings £210

To file a consent order £45

To issue Children Act proceedings £200

You may if you wish place a limit on the costs the firm may incur on your behalf, which will not be exceeded without prior agreement. Please let me know if you wish to do this. If you do wish to place such a limit on costs, we will contact you in writing when this limit is being approached in order to discuss future costs.

[Inclusion 2 – for pre-marital and cohabitation agreements]

The firm’s charges are payable in any event, whether or not you and your partner sign the [cohabitation][pre-marital] agreement. You are primarily liable for the charges. If your costs are being paid by a third party, such as a friend or family member, you still remain primarily liable to the firm for those fees. If you have any questions about your costs, please do discuss them with me.

Guides to Good Practice 93 The firm’s charges will depend on the issues and complexity of the agreement drafted for you. If you wish to put in place complex structures to protect your assets, for example if some of those assets are held overseas, or if trusts are involved, the fees will necessarily be higher. I may need to involve a foreign lawyer to advise on the enforceability of the agreement overseas, a barrister to assist with the drafting, and other experts (for example, an accountant or valuer). [A cohabitation agreement will usually cost between £[ ] and £[ ] (plus VAT and disbursements) to prepare. If significant negotiations are required then the costs may be higher.] [A pre-marital agreement may cost anywhere between £[ ] and £[ ] (plus VAT and disbursements) dependent on the issues, assets, length of time involved in preparing the document, and the need to involve other professionals.]

Based on the information you have given me, I am required to advise you about the likely level of your costs and the balance of likely outcome as against expense and risk. I believe that it is likely that your costs will be in the region of £[ ] to £[ ] plus VAT and disbursements [and I will be able to give you further information about the likely level of your fees once I have more details about the work involved]. As every case is different, you will appreciate that it is very difficult to give one specific and accurate estimate. I will update you each month when I send you my firm’s monthly invoice as to your costs position and whether this estimate is likely to change. If insufficient fees have been incurred to justify the raising of an invoice in any particular month and you wish me to review your costs position anyway, please just let me know. I believe also that the potential outcome of your case [does/does not] justify the expense or risk involved [for the reasons set out in my letter of [date]]/[because [insert reasons]]. [Assuming the agreement is concluded and signed, it should mean that there is less scope for dispute if in the future your relationship breaks down and [the ownership of your home is in issue/there is the need for a financial settlement on divorce or separation to be determined.]. When I send you my firm’s monthly invoice I will also update you specifically about the issue of whether the potential outcome of your case will justify the expense or risk involved.

You may if you wish place a limit on the costs the firm may incur on your behalf, which will not be exceeded without prior agreement. Please let me know if you wish to do this.

[Inclusion 3 – for Children Act cases]

The firm’s costs and charges are not contingent upon the result of your case. They are payable in any event. You are primarily liable for the charges. It is only in exceptional circumstances in children cases that the court will order that one person in the case should pay the other’s costs. If your case involves disputed court proceedings, it is always difficult to give you an accurate forecast in relation to costs because that will depend on the issues in the case, the volume and the complexity of the documents, and the time that we might spend preparing evidence and in reviewing any independent evidence, including from any expert appointed by the court. Advising you in relation to issues of residence concerning children could involve costs in the region of £[ ] to £[ ], plus VAT. If court proceedings are issued, then the application fee will be £175. Contested proceedings could incur costs in the region of £[ ] to £[ ]. They may include paying a barrister to represent you at a final hearing, which will be a separate fee that I will discuss with you in advance.

I will update you each month when I send you my firm’s monthly account as to your costs position. I will let you know whether my overall estimate is likely to change as matters unfold.

I am also required to advise you about the likely level of your costs and the balance of likely outcome as against expense and risk. You and I will discuss the outcome that you wish to achieve, and I will advise you about the range of possibilities, and give you my best advice about what is likely to happen. At each stage, I will explain and estimate the costs of a particular course of action so that you can decide whether you wish to continue.

94 Guides to Good Practice You may if you wish place a limit on the costs the firm may incur on your behalf, which will not be exceeded without prior agreement. Please let me know if you wish to do this.

Recovering costs from the other person in your case

[Consider using one of the following two sections in contentious cases – depending whether the FPR or CPR apply]

[1 – Divorce or children cases]

You should be aware that if court proceedings are issued in order to resolve your case, the court can in certain circumstances make costs orders.

The general rule in family cases is that each person pays their own legal costs. By contrast to other court cases, in family cases courts do not automatically order one person to pay the other’s costs. In cases involving children or finances, the court will only order one person to pay the other’s costs in exceptional circumstances, for example if one person has conducted the court case in a way that has wasted considerable resources or if the person has tried to mislead the court. If there is no order for costs, each person will pay their own costs.

The court does have the power to make an order for costs and to assess the applicable amount of those costs at various stages during the case, and may order either person to pay a specified amount of the other’s costs in connection with a particular procedural stage or application. This is called summary assessment.

Whether you are the paying or the receiving person, if a costs order is made and the costs are not summarily assessed and cannot be agreed with the other person, they will be subject to detailed assessment proceedings after the case has been concluded. In that event, you should be aware that this firm will incur further costs on your account which you will be required to pay. These will include the costs that this firm incurs in drawing up any detailed bill of costs on your behalf.

If you are ordered to pay a specified amount of costs to another person in court proceedings at any stage in your case you must do so within 14 days from the order, unless the court orders otherwise. This firm will not pay other people’s costs on your behalf and if, therefore, the firm is not placed in funds in time, this could have serious consequences for you.

The general rule is that any costs award must be proportionate to the dispute in question. The court will therefore compare the amount of the successful person’s costs with the total amount of money at stake and/or the complexity or importance of the issues raised. For example, if the court took the view that the successful person’s costs were excessive when compared to the total value of the dispute, that person might recover a smaller percentage of those costs. On the other hand, if the dispute is very complicated or raises an important legal principle, the successful person may recover a higher percentage.

If the other person has public funding (formerly legal aid), it is most unlikely that you will be able to recover any of your costs. Please note that you will be responsible for paying the full amount of this firm’s fees, disbursements and expenses regardless of any order for costs in your favour. The firm will, of course, account to you for any costs which you succeed in recovering from the other person.

In order to obtain a costs order against another person, I will need, in advance of any court application, to prepare a schedule of your costs of that application. Regardless of whether a costs order is obtained against another person, you will be required to pay the costs which the firm incurs in preparing this schedule.

Guides to Good Practice 95 [2 – TLATA cases – include the following paragraphs up until the ‘Insurance before the event’ section]

If you decide not to proceed with your case before court proceedings are issued, or if the case is settled before then, there is no rule of law requiring another person in your case to make any payment towards your legal costs, although this may be part of an overall agreement reached.

It is important that you understand that you will be responsible for paying the firm’s fees even if the case is unsuccessful.

If proceedings are commenced and your case is successful then the other person will normally be ordered to pay a proportion of your legal costs. This is entirely at the discretion of the court and there are certain situations in which the general principle may be altered, for example if there has been an offer to settle. The general rule is that any costs award must be proportionate to the dispute in question. The court will therefore compare the amount of the successful person’s costs with the total amount of money at stake and/or the complexity or importance of the issues raised. For example, if the court took the view that the successful person’s costs were excessive when compared to the total value of the dispute, that person might recover a smaller percentage. On the other hand, if the dispute is very complicated or raises an important legal principle, the successful person may recover a higher percentage.

If the other person has public funding (formerly legal aid), it is most unlikely that you will be able to recover any of your costs.

Please note that you will be responsible for paying the full amount of the firm’s fees, disbursements and expenses regardless of any order for costs in your favour. The firm will, of course, account to you for any costs which you succeed in recovering from the other person. [As I know nothing about the financial position of the other person, I am unable to say whether [he][she] is likely to have the funds to meet any judgment or order for costs. Please discuss this point with me if you have any doubts about it.]

You should bear in mind that almost all litigation involves some risk of being unsuccessful. If so, you are likely to be ordered to pay a proportion of the other person’s costs (together with interest) in addition to your own. If the other person has entered into a conditional fee agreement, you may also have to pay an additional sum in respect of the success fee and any insurance premium.

You should also be aware that the court has power to make an order for costs and to assess the applicable amount of those costs at various stages during the case and may order either person to pay a specified amount of the other’s costs in connection with a particular procedural stage or application. This is called summary assessment. As a general rule, a person ordered to pay costs on a summary assessment will have to do so within 14 days. In the event, therefore, that such a costs order is made against you, you will need to be in a position to place the firm in funds immediately so that I can pay the costs within the time limit imposed by the court. This firm will not pay other people’s costs on your behalf and if, therefore, the firm is not placed in funds in time, this could have serious consequences for you.

Whether you are the paying or the receiving person, if a costs order is made and the costs are not summarily assessed and cannot be agreed with the other person, they will be subject to detailed

96 Guides to Good Practice assessment proceedings after the case has been concluded. In that event, you should be aware that this firm will incur further costs on your account which you will be required to pay. These will include the costs that this firm incurs in drawing up any detailed bill of costs on your behalf.

If your case is successful and costs are recovered from the other person, you may be able to claim interest on those costs from the date of the order. To the extent that any of the firm’s costs have not been paid, this interest will be retained by the firm. If you have paid the firm’s costs then the interest from the date that you did so will belong to you. Where the court makes a penal order of interest on costs, different considerations may apply.

I should point out that, once you have become involved in litigation, you are unlikely to be able to withdraw without reaching an agreement in respect of the other person’s legal costs.

Insurance – before the event

You should not overlook the possibility that the cost of bringing or defending legal proceedings might be covered by one or more of your existing insurance policies. Legal expenses insurance is often sold as an optional extra, or you may have taken out insurance against specific risks which would cover the circumstances of this case. If you have any doubt about this, you should review your insurance cover and/or contact your insurance broker.

Insurance – after the event

Insurance can also be taken out after a dispute has arisen in relation to certain disputes. These tend to be ‘civil’ type claims rather than claims in connection with family breakdown, but please ask me whether insurance may be available in relation to your case if you wish to consider it as an option. Legal expenses insurance can cover your own legal costs if the case is unsuccessful and also any legal costs that you are ordered to pay to the other person. ‘Costs’ includes fees, disbursements and expenses and VAT where applicable. Premiums for this type of insurance range from about 15% to 40% of the sum insured, depending on the type of case. Under some policies, the premium is reimbursed if the claim is unsuccessful. If the case is successful, you may well be able to recover the cost of the premium (or a proportion of it) from the other person.

Please note that most insurance policies do not pay out if you are successful with your claim but fail to recover any money as a result of the other person’s insolvency. The terms of any insurance policy will require me to make regular reports to your insurers. If there are any material changes in the circumstances of the case, these will have to be notified. Please let me know if you would like some further details about possible insurance cover. I should be able to provide you with some information about insurance products, but I will not be in a position to advise you as to their respective merits. You should speak to an insurance broker about this.

[Consider including the following payment on account section]

Payment on account

It is this firm’s general policy in matters of this sort to ask clients to make payments from time to time on account of fees, disbursements and expenses. Please let me have a cheque for £[ ] (made payable to [Insert name of firm]) when you return the duplicate copy of this letter. This sum will be held on account and used to offset fees, disbursements and expenses incurred in this matter. Unless otherwise agreed, I will not do any work in relation to this matter until I receive this money. I may ask you to provide reasonable further payments on account as the matter progresses as a condition of continuing to act for you. If any money on account is left at the conclusion of the matter then it will, of course, be

Guides to Good Practice 97 refunded to you. You should bear in mind that the firm’s total bill may be higher than the amount you have paid on account.

Limitation and exclusion of liability

[Refer to the guidance to rule 2.07 of the Solicitors’ Code of Conduct on this issue.]

In common with other professional advisers, it is the firm’s policy, on all matters on which the firm is instructed, to exclude and/or limit its liability to clients in certain situations. Please read [refer to relevant section in terms of engagement] and contact me if you have any queries. Our insurance covers [insert territorial coverage] and the insurer can be contacted on [insert insurer contact details]. [If an LLP: Please note, in particular, that it will be the LLP that provides the services to you and that the LLP’s liability to you will be limited to £[ ] million on each matter on which it is instructed unless otherwise agreed in respect of that specific matter.]

Money laundering

In order to comply with its statutory obligations, the firm operates an anti-money laundering reporting procedure. If the firm knows or suspects that you (or any other person involved in this matter) are involved in money laundering or hold the proceeds of crime, the firm may be required by law to make a report to the Serious Organised Crime Agency (SOCA) and if notification is made, the firm is prohibited from advising the suspected person that it is doing so. These requirements override the firm’s duty of confidentiality to you.

Proceeds of crime are assets or income that have been acquired through some illegal activity, for example drug-trafficking, non-payment of tax or fraudulently obtaining benefits. If a report is made to SOCA, the firm must stop work on the matter until it is authorised by SOCA to proceed. Any fees, disbursements and expenses incurred in complying with the above will be charged to you. There may be circumstances in which the firm considers that it is obliged to make a report to SOCA which it later turns out was not required by law. By instructing the firm you agree that such reports can be made. The firm cannot accept responsibility or liability for any loss, damage or expense (whether direct, consequential or otherwise) arising from any delay or otherwise as a result of making any reports to SOCA and ensuring compliance with its statutory obligations.

Public funding

[See separate letter if the client will be publicly funded. Now use one of the following three inclusions – if the client is clearly not eligible delete the whole section and make no reference to public funding.]

[1 – Client not currently eligible but could become so]

Based on the information you have provided, you are not currently eligible for public funding (formerly legal aid). However, it is possible that as matters progress you may become eligible. Please keep me fully informed of any change in your capital or income position. This firm does not participate in the public funding scheme and I am, therefore, only able to act for you on a private basis. If you become eligible for public funding, I will discuss with you the option of transferring to a firm that does participate in the scheme. If, notwithstanding your eligibility, the firm is to continue to act on your behalf I will discuss the funding consequences with you again. There are certain advantages to be gained from public funding. These include a lower hourly rate (as a result of which the overall bill at the end of the day will be smaller). However, public funding is not free where financial matters are concerned. The Legal Services Commission

98 Guides to Good Practice is likely to have a charge over property or money which has been preserved or recovered as a result of the work undertaken. There may be restrictions upon the work which can be undertaken.

[2 – Client is clearly eligible but wishes to instruct the firm anyway]

Based on the information you have provided, you are currently eligible for public funding (formerly legal aid). This firm does not participate in the public funding scheme and I am, therefore, only able to act for you on a private basis. There are certain advantages to be gained from public funding. These include a lower hourly rate (as a result of which the overall bill at the end of the day will be smaller). However, public funding is not free where financial matters are concerned. The Legal Services Commission is likely to have a charge over property or money which has been preserved or recovered as a result of the work undertaken. There may be restrictions upon the work which can be undertaken.

I have discussed with you the option of instructing solicitors who are able to represent you on a publicly funded basis, but having considered the various factors outlined above, you have indicated that you wish this firm to act for you on a private basis. Should you wish to reconsider this decision, please let me know immediately.

[3 – Where you don’t know whether the client may be eligible]

Based on the information you have provided, you may be currently eligible for public funding (formerly legal aid). This firm does not participate in the public funding scheme and I am, therefore, only able to act for you on a private basis. There are certain advantages to be gained from public funding. These include a lower hourly rate (as a result of which the overall bill at the end of the day will be smaller). However, public funding is not free where financial matters are concerned. The Legal Services Commission is likely to have a charge over property or money which has been preserved or recovered as a result of the work undertaken. There may be restrictions upon the work which can be undertaken.

I have discussed with you the need to assess your eligibility so that you may make an informed decision about whether to instruct this firm or another firm that is able to represent you on a publicly funded basis. [I recommend that you contact [insert details] to ascertain whether you are eligible or not, and if so on what terms. If you are not eligible, or if you are eligible but having considered the various factors outlined above, you wish this firm to act for you on a private basis, please let me know.] [As agreed, I have discussed your financial position with [insert details] based on the information that you gave me in our meeting/telephone call on [insert date] and you [are probably][are not] eligible for public funding. If you wish this firm to act for you on a private basis, please let me know. Alternatively, I would recommend that you instruct [insert details].] Should you wish to reconsider this decision, please let me know immediately.

Communications, privacy and the duty of disclosure

In family proceedings, it is vital that you keep the firm fully up to date with any change in your circumstances. I take this opportunity to make you aware that the court rules relating to financial matters require each person to provide to the other person full details of their financial position, supported by documentary evidence. This process is known as disclosure and is the basis of meaningful negotiations. It is unlikely that any proposals you make for financial settlement will be accepted if full disclosure has not been made. The duty of disclosure is an ongoing duty and continues up until any court order is made, not just at the outset. If your financial or personal position changes during the negotiations or court proceedings you must inform me so that those changes may be disclosed to the

Guides to Good Practice 99 other person, if relevant. If full disclosure is not made by you, this could seriously hinder negotiations. In certain circumstances, this may result in any agreement reached being subsequently overturned, in costs penalties or in a punitive award being imposed by the court against you.

Confidential documents

The court can impose penalties, both civil and in some cases criminal, where confidential documents are obtained illegally. That includes taking copies of documents that are deemed confidential and in certain circumstances if you then provide me with copies of those confidential documents or the originals, I would not be able to act for you. This is a complex area and I suggest that if you have any queries at all about the appropriateness of obtaining information about financial circumstances that is not directly in your control, we discuss the issues in advance. The definition of documents extends to electronic data, including that stored on a computer or telephone.

In family proceedings you are under a duty to keep all financial information you receive about the other person confidential. Naturally you may discuss that information with this firm, but it is not to be used for any other purpose. To do so may put you in contempt of court.

Under the Fraud Act 2006, dishonestly failing to disclose information that you are under a legal duty to disclose (which would apply to disclosure in financial proceedings on divorce) may also result in criminal prosecution.

The other person is under the same duty in respect of disclosure. If you believe that a true account of the other person’s financial circumstances may not be or has not been given, I recommend that you seek my advice urgently before taking any steps to obtain financial information about the other person. The law is complex in this area and any action you might wish to take could be in breach of the criminal and/or civil law, which means that you could be prosecuted and potentially imprisoned and/or sued for damages.

Media

Should your case go to court, there is a possibility that accredited media will be present. However, the fact that they are present does not mean they will automatically have the right to report what takes place. Further information about this possibility will be provided to you as appropriate.

VAT

Under UK law we are required to supply to you our VAT registration number, which is [insert VAT number].

Resolution

All the qualified lawyers within the family team at [insert name] are members of Resolution, which means that they are required to comply with its Code of Practice, a copy of which is enclosed. When disputes are resolved in the constructive and non-confrontational way promoted by the Code, the outcome can be much better, both financially and emotionally, for all concerned. By signing and returning this letter you agree to your matter being handled in this way.

Conclusion

Please do not hesitate to call me if you have any queries about the terms of this letter or the terms of engagement. Your continuing instructions will amount to acceptance of these terms of business, but please sign and date the enclosed copy of this letter and return it to me as soon as possible in the pre-

100 Guides to Good Practice paid envelope provided. [Use the following section in square brackets where there is no face-to-face meeting during initial instructions.]

[The Consumer Protection (Distance Selling) Regulations give you the right to cancel your agreement with the firm at any time during the seven working days immediately following the day that you return the copy of this letter duly signed. It is in your interests that I start work as soon as possible. Please, note, therefore, that by signing and returning this letter, you authorise the firm to start work immediately. This means that you lose the right to cancel. However, under the firm’s terms of business you have the right to instruct us to stop work at any time, although if you exercise that right you will then have to pay for the work the firm has done.

Please also note that by signing the letter you also agree to the time for the firm to complete your work being extended beyond the 30 days envisaged by the above Regulations.

If I have not received a signed copy of the letter back within 28 days I shall assume that you do not wish to proceed, and will take no further action.]

Yours sincerely…

I confirm acceptance of the terms set out above.

Signed Print name

Dated

Guides to Good Practice 101 Precedent legal aid client care letter

Scope of instructions

Dear [ ]

[Incorporate rest of Rule 2/engagement letter including scope of instructions, responsibility for work, money etc]

Public funding

Please read and keep this letter because I am explaining some important points.

Emergency public funding

If you have been granted emergency public funding then this is to pay for your legal costs to go to court. In some circumstances, an emergency public funding certificate is issued without a full assessment of your financial means. If subsequently it is found that your means are such that the certificate ought not to have been granted, then the certificate can be revoked, which would mean you would have to pay back to the Legal Services Commission all the legal costs of the emergency work. Even if the emergency work is finished and you do not want any more legal advice, it is important that you complete and return any forms or requests for documents or information that are sent to you, and ensure that you pay any contributions that you are required to, since otherwise your certificate can be revoked.

The emergency certificate will only cover the urgent work required and will be time limited. Any non- urgent work must wait until a full certificate is issued to you.

Public funding certificate

A public funding certificate is to pay for your legal costs for me to deal with arrangements or problems that can include going to court. The Legal Services Commission will not pay any work I undertake in going to court before either an emergency certificate or a public funding certificate is granted.

Offer of public funding

If the Legal Services Commission writes to you making an offer of public funding please note that I cannot start work until:

• you accept the offer; and

• you pay the Legal Services Commission your contribution or the first instalment they ask for; and

• the Legal Services Commission has sent me the public funding certificate.

If you are allowed to pay by instalments and you do not keep them up then you may:

• lose your public funding; and

• have to pay some or all of your legal costs.

102 Guides to Good Practice Remember:

• You are still liable to pay the contributions even if the legal work is finished. If you cannot afford the contributions you must tell the Legal Services Commission.

• If the total costs at the end of the matters are less than the total amount of your contributions, you may be entitled to a refund of those contributions. If your legal costs are higher than the total of all the contributions you may have paid, then the statutory charge may apply (see below).

• If you fail to pay instalments then your legal aid certificate will be cancelled and you may have to repay some or all of your legal costs.

• If you apply for emergency funding you are agreeing to accept the offer of public funding and pay the required contributions.

Changes you must tell the Legal Services Commission about:

• Changes of capital or income – if they go up you may have to pay higher contributions to your public funding or you may no longer be eligible.

• Changes of address

• Cohabiting with a new partner.

• Changes to your benefits.

Otherwise you may:

• lose your public funding; and

• have to pay some or all of your legal costs.

The statutory charge

It is important to remember that public funding is only in some circumstances completely free. In most cases it operates as a loan. If there is a dispute about owning, sharing or using:

• money (except maintenance);

• property;

• other valuable, disputed assets (eg pensions, trusts, jewellery, antiques, animals, cars/vans, boats, collections, life policies) etc; and/or

• debts – when one person is released from part or all of a debt, then if you receive or keep the money, property or valuable asset, I must first pay out of it to the Legal Services Commission enough money to cover all your public funding costs. The costs must be repaid before any other debt or liability, irrespective of the terms of any court order.

Please note:

• The law about this harsh ruling is very complicated.

Guides to Good Practice 103 • If the property that is recovered or preserved is your home, the Legal Services Commission may agree to delay payment of your public funding costs until the property is sold or until you decide that you want to raise money on it (if earlier). Interest will, however, be added to the costs until they are paid back. That is currently 8% per annum.

• If you recover money which you wish to use to buy a family home or you sell your family home to buy another home, the Legal Services Commission has a limited discretion to delay repayment until the new home is sold, but interest will be added until the costs are paid back.

• Legal costs can be very expensive. Please help me to keep them as low as possible. We can discuss ways in which this can be done.

• If you are represented in several aspects of family proceedings, including divorce, children issues, injunction issues or property issues then the statutory charge applies to all the costs that you incur where you have the benefit of a public funding certificate. Even if there are separate certificates, they will be linked and the statutory charge will apply to the total costs incurred. If you do recover or preserve money or property, and you have very high public funding costs because of issues concerning children or an injunction, then you may find that all that you have recovered needs to be paid back.

Cost consequences of court proceedings

You may still be ordered to contribute to or pay the other person’s legal costs if you are unsuccessful even though your own costs are paid by the Legal Services Commission. Any amount that you are ordered to pay will be decided by the court after an assessment of your financial circumstances. If you are successful, it may be that in some limited circumstances the other person will be ordered to pay your costs. If that is the case then I will be entitled to charge those costs at the hourly rates set out above/in our Terms of Business agreement.

Costs estimate

It is important to provide you with the best information about the likely costs which will be involved so you are aware of the amount which may have to be repaid.

In most family proceedings the Legal Services Commission pays standard fees depending on the nature of the proceedings, the stage at which they end and the number and length of hearings required. The payment arrangements are complex but in general if the cost of the work required on your case exceeds more than three times the standard fees (two times in some proceedings), the case is considered exceptional and the Legal Services Commission will pay for the work we have carried out at hourly rates. There are some types of family proceedings that do not fall within the standard fees and for which the Legal Services Commission will pay for work undertaken at a specified hourly rate. This includes cases of forced marriage protection and international child abduction. You should also note that if this work is undertaken by a Resolution accredited specialist or panel member, or if your case is complex, a higher uplift, of no more than 100% may be claimed.

The standard fees for legal costs are complex and subject to change. We will try to keep you informed of the standard fees applicable to your case from time to time. Once again please note that if the case becomes exceptional uplifts may be added to the hourly rate as per the paragraph above.

104 Guides to Good Practice [I anticipate that your case will incur the following standard fees, making an estimated total of £[ ] plus VAT]/[I anticipate that your case will become exceptional and the likely costs will be between £[ ] and £[ ] plus VAT.]

In addition to the standard fees, we will also have to pay out expenses on your behalf. The Legal Services Commission will pay this as the case progresses but if you have to repay your costs, these will be payable in addition to the fees set out above. They are:

Expense Amount

Therefore, the likely total costs incurred under the public funding certificate is £[ ] inclusive of VAT and expenses. Please remember that if you have to repay your costs this will also include any costs incurred under the family help scheme, which I have already notified you about.

As the matter proceeds I will provide you with an update of that figure with details of costs and expenses incurred at least every six months.

Conclusion

Your continuing instructions in this matter amount to acceptance of my firm’s terms of business. Even so, I would ask you please to sign and date a copy of this letter where indicated and return it to me in the enclosed pre-paid envelope so that I can be sure that you understand the basis upon which I am acting for you, and the regulations in relation to the Legal Help Scheme.

Yours sincerely…

I confirm that I have read and retain the original letter of which this is a duplicate

Signed ……………………………………. A Client

Dated …………………………………….

Guides to Good Practice 105 Precedent family help letter

[What follows is an explanation of the legal help scheme to add to the public funding client care letter where applicable]

Family help scheme

This covers legal work before the grant of emergency or full public funding. It does not cover proceedings issued in a court other than for divorce or judicial separation. You must be aware that the work that I carry out for you under the legal help scheme is limited solely to the essential work required to achieve the legal objectives in your case. At all times, a test is applied by the Legal Services Commission that there is sufficient benefit to be obtained in carrying out the work on your behalf compared with the cost to the public fund.

Representation

Under the family help scheme it is not possible to represent you at court. However, if your situation becomes more complex or is fully contested then it may be possible to apply for an emergency or full public funding certificate. I explain below important points about the public funding scheme.

Evidence of income

It is essential under the Legal Services Commission Regulations for us to obtain from you evidence of your income and/or benefits to verify your entitlement to advice under the family help scheme. This should be provided at the initial meeting. If it is not available then you must provide such proof very promptly. If you do not, we will be unable to carry out any further work for you until evidence of your income and means has been produced. Failure to provide this documentary evidence will result in us being required to cease advising you, and you may be invoiced at my private hourly rate as set out below.

You will not have to pay anything towards our costs under the legal help scheme if you do not recover money or preserve property. However, if the issues about which I am advising you under the family help scheme become complex and/or you are issued a public funding certificate then the costs incurred under the legal help scheme do become relevant and if money or property is recovered or preserved then the statutory charge is likely to apply. Full information about the statutory charge is set out below.

The statutory charge

It is important to remember that public funding is only in some circumstances completely free. In most cases it operates as a loan. If there is a dispute about owning, sharing or using:

• money (except maintenance);

• property;

• other valuable, disputed assets (eg pensions, trusts, jewellery, antiques, animals, cars/vans, boats, collections, life policies) etc; and/or

• debts – when one person is released from part or all of a debt;

106 Guides to Good Practice then if you receive or keep the money, property or valuable asset, I must first pay out of it to the Legal Services Commission enough money to cover all your public funding costs. The costs must be repaid before any other debt or liability, irrespective of the terms of any court order.

However, if you settle financial matters through mediation, you do not have to pay for my firm’s legal costs in advising and assisting you.

Please note:

• The law about this harsh ruling is very complicated.

• If the property that is recovered or preserved is your home, the Legal Services Commission may agree to delay payment of your public funding costs until the property is sold or until you decide that you want to raise money on it (if earlier). Interest will, however, be added to the costs until they are paid back. That is currently 8% per annum.

• If you recover money which you wish to use to buy a family home, or you sell your family home to buy another home, the Legal Services Commission has a limited discretion to delay repayment until the new home is sold, but interest will be added until the costs are paid back.

• Legal costs can be very expensive. Because of the public funding or statutory charge, please help me to keep them as low as possible. We can discuss ways in which this can be done.

Costs estimate

It is important to provide you with the best information about the likely costs involved in the event that you have to repay your legal costs.

The Legal Services Commission pays standard fees depending on the nature of the work required. The payment arrangements are complex but in general if the cost of the work required on your case exceeds more than three times the standard fees (two times in some proceedings), the case is considered exceptional and the Legal Services Commission will pay for the work we have carried out at hourly rates.

The standard fees for the legal costs are complex and subject to change on a regular basis. We will endeavour to keep you informed of the standard fees that apply to your case from time to time.

[I anticipate that your case will incur the following standard fees, making an estimated total of £[ ] plus VAT]/[I anticipate that your case will become exceptional and the likely costs will be between £[ ] and £[ ] plus VAT.]

In addition to the standard fees, we will also have to pay out expenses on your behalf. It is possible to apply to the court for exemption of some of the court fees and we will provide you with an application form if this is appropriate. The likely expenses are:

Guides to Good Practice 107 Expense Amount

Therefore, the likely total costs incurred under the family help scheme is £[ ] inclusive of VAT and expenses.

As the matter proceeds I will provide you with an update of that figure with details of costs and disbursements incurred at least every six months, if it is likely that you will need to repay the costs to the Legal Services Commission.

Conclusion

Yours sincerely…

I confirm that I have read and retain the original letter of which this is a duplicate

Signed ……………………………………. A Client

Dated …………………………………….

108 Guides to Good Practice Guide to Good Practice on the Proceeds of Crime Act 2002

The Proceeds of Crime Act 2002 has presented significant difficulties for family lawyers since coming into force on 24 February 2003. In the absence of case law arising from the Act, a definitive view could not be taken as to whether family lawyers committed the offences created by the Act or whether criminal charges brought against family lawyers would fail by virtue of the Act’s incompatibility with legal professional privilege and the Human Rights Act.

The Act first fell to be considered by the court in P v P [2004] 1 FLR 193. In that case the President of the Family Division found that lawyers were caught by the provisions of the Act and risked criminal prosecution if they failed to observe those provisions. Issues touching legal professional privilege and the Human Rights Act were not, however, raised before the President.

The effect of the Act was next considered by the Court of Appeal in Bowman v Fels [2005] 2 FLR 247, which was handed down on 8 March 2005. The Court of Appeal held that lawyers advising clients in the course of litigation (or negotiations to reach a consensual settlement where there is litigation in the background) are exempt from the requirements of the Act to report suspicions of money laundering. This means that family lawyers should not make disclosures to SOCA (formerly NCIS) after 8 March 2005 in circumstances where they would previously have done so when applying the decision in P v P. Doing so could expose solicitors to a civil action for breach of confidentiality from the client in relation to whom the disclosure is made.

It is critical to appreciate that the decision affects only contentious business. Non-contentious transactions do, therefore, remain subject to the reporting obligations which P v P found to apply to those advising in litigation.

The decision in Bowman v Fels did not resolve every issue arising from the Act. For example, whilst it appears highly likely that those engaged in the mediation and the collaborative processes are within the exception created by Bowman v Fels, the decision is not absolutely explicit in this regard.

Appropriate paragraphs to be inserted into retainer letters covering the issue of money laundering can be found on the Law Society website together with broad guidance for solicitors in relation to the issue.

Guides to Good Practice 109 110 Guides to Good Practice Guide to Good Practice on Dealing with Financial Dispute Resolution Appointments

1. Introduction

The procedure for financial dispute resolution appointments (FDRs) is set out in Part 9.17 of the Family Procedure Rules 2010 (FPR 2010) and Practice Direction 9A (PD 9A). They are meetings ‘held for the purposes of discussion and negotiation’, ‘to reduce the tension which inevitably arises in family disputes and facilitating settlement of those disputes’ (para 6.1 PD 9A). Paragraph 6.2 goes on to say that ‘in order for the FDR to be effective, parties must approach the occasion openly and without reserve’. The parties ‘must use their best endeavours to reach agreement on the matters in issue between them’ (r9.17 FPR 2010). From the client’s point of view many issues arise at FDR. These can be summarised as follows:

(a) clients feeling bullied and pressurised into reaching an agreement that day;

(b) solicitors not attending the FDR;

(c) clients meeting counsel for the first time on the day of the FDR, and having insufficient conferences with counsel before the hearing (whether in chambers or at court);

(d) consent orders made/forced through under duress;

(e) solicitors/counsel being rushed and rude;

(f) solicitors/counsel having other hearings to deal with on the same occasion and so not giving either client full attention;

(g) advice being given by counsel at the FDR that differs from that given by counsel previously instructed in the matter; and

(h) advice being given by counsel at the FDR that differs from that given by the solicitors – therefore heard for the first time at the FDR.

Settlements are often finalised in haste and under stressful conditions. It is very easy for something to be missed – for example, a tax consequence, security, insurance policy, pension implications etc. Therefore it is important that you ensure that you comply with the following and that if you instruct counsel, that they do the same:

• check and advise as to relevant matters;

• explain the circumstances of an FDR to a client and the risks involved (as against the advantages of settlement);

• check the factual basis with the client – eg all joint assets are covered etc;

• check the client understands the terms of settlement and also the basis for it; and

Guides to Good Practice 111 • ensure that the client is not put under undue pressure to sign up to an agreement they will later regret.

One matter that could be considered is whether there should be a cooling-off period after agreement has been reached. The most basic consumer credit agreement provides for this, yet we expect clients to settle at the end of a long day and in stressful circumstances. Naturally, there are dangers in this (eg a less rigorous approach to settlements) but it may be from the client’s point of view that this time to reflect should be available and, from your/counsel’s standpoint, it would also give some protection against claims of over-zealous settlement. If you do think this is appropriate and a consent order is not lodged, then a period of seven or 14 days could be allowed and the matter listed for a mention to determine whether the FDR should be re-listed or the application set down for hearing.

2. Prior to FDR

2.1 All rules of court and directions given at the first appointment should be complied with.

2.2 If instructing counsel to represent your client at the FDR, consider with your client arranging a conference with counsel beforehand so that your client will not be meeting counsel for the first time on the day of the FDR; so that counsel can seek any further information required and advise; and so that preparations for the FDR can be agreed. See also the Guide to Good Practice on Dealing with the Bar.

2.3 You should ensure there is a proper schedule of assets and income and where appropriate a ‘net effect’ illustration of offers made. If you are instructing counsel to represent your client at the FDR you should agree with them who is going to prepare these documents.

2.4 Rule 9.17(3) of the FPR 2010 provides that not less than seven days prior to the FDR, the applicant must file with the court details of all offers and proposals, and responses to them. This, in practice, means copies of all without prejudice and open offers should be lodged with the court seven days prior to the FDR. Without prejudice offers/correspondence should then be taken back from the court file at the end of the FDR. They will of course also be included in the FDR bundle if prepared.

2.5 Ideally there should be a concise written summary presentation for the court of the clients’ respective positions. These should be clearly marked ‘FOR USE AT THE FDR ONLY’. This is called a position statement or case outline. Different courts have varied expectations of what is expected, but it is good practice to produce such a document. Again, if instructing counsel, agree with them who is to produce this. A guidance note for drafting a position statement/case outline and a precedent position statement/case outline can be found at the end of this guidance note.

2.6 If counsel is producing the position statement then it should be e-mailed to the instructing solicitor as soon as practically possible and certainly prior to the day of the FDR. The solicitor should forward a copy to the client and obtain their approval (and/or comments). The solicitor should let counsel have their comments on the position statement and the final wording should then be signed off with counsel in sufficient time to allow any necessary amendments. This will

112 Guides to Good Practice eliminate the all too frequent situation where the client sees the position statement for the first time at court at the FDR and is unhappy with some or all of its contents.

2.7 Rule 2.61E of the FPR 2010 states that, at the conclusion of the FDR, any filed documents must, ‘at the request of the party who filed them’, be returned and not retained on the court file. The onus is therefore on you/your counsel to ensure that no without prejudice documents remain on the court file.

2.8 If you are instructing counsel and there has been no pre-FDR conference you should make clear in your instructions what advice (if any) the client has been given by you. If counsel’s view differs from yours then, wherever possible, you should ask counsel to advise you in advance so that you can pass on counsel’s advice to the client.

2.9 In a case of any complexity it will usually be appropriate for you or a properly briefed assistant to be present, particularly if there has been no prior conference.

3. At the FDR

3.1 Both parties must personally attend the FDR (r9.17(10) FPR 2010).

3.2 Attend punctually (unless otherwise instructed, one hour in advance of the listed hearing time).

3.3 Even where the listing requires attendance one hour before the hearing to enable negotiations, it is often advisable – particularly when there has been no earlier conference – to start the conference with the client at court earlier than this so that inter-party negotiations can commence at the designated time.

3.4 Because of the nature of FDRs and the time that needs to be spent with the client, it is advisable that careful thought be given before agreeing to conduct more than one FDR in one day. It is good practice for counsel, if offered a brief from a second firm of solicitors, to expressly seek consent from the first solicitor (and their client) prior to acceptance of the second brief, and that this consent is recorded by the clerks. The second solicitor (and their client) must also, of course, be made aware that counsel has already accepted one brief, and its nature. If you seek to brief counsel for more than one FDR, you should ensure that both clients have been made aware in advance and have consented.

3.5 Explain the nature of the FDR to the client as soon as is appropriate in each case and ensure that they have a good understanding of its nature, process and aims well in advance of the hearing date, ie that the purpose of the hearing is to explore actively whether reasonable settlement may be achieved by agreement. The explanation should include the privileged and ‘without prejudice’ nature of the hearing (and associated negotiations) and that the judge conducting the hearing is not permitted to have any further involvement in the case. You should also explain that the judge ought to give an indication, the weight that must be given to this indication, and its non-binding nature.Explain to the client the benefits of settling so that the costs, stress and delay of a contested hearing may be avoided. Costs implications of both a settlement and progressing towards trial should be explained. This last point is vital since saving costs is a major benefit to clients of settling at FDR stage, and is one which the client readily understands.

Guides to Good Practice 113 3.6 Explain that the client is not bound to settle at the hearing. If they wish to give further consideration to offers of settlement made, subsequently withdraw any offers made but not accepted at the hearing, and/or go to trial then that is their entitlement. It would be perfectly proper to point out the timescale of such a decision and that there would be no finality for several months. Interim arrangements would have to be continued – for example, a party who is not living in the former matrimonial home may have to continue to rent. An application for maintenance pending suit/interim periodical payments may also have to be considered if this has not already been addressed. Ensure that the client understands that the court will expect both parties to negotiate constructively – ie that the offer(s) made in advance of the hearing (and/or the offers formulated at court) are usually expected to be a parties’ opening position rather than their last word. Explain that the court should do more than simply choose between both parties’ positions and, in most cases, will expect negotiations to continue after an initial indication has been given.

3.7 Verify the schedule of assets and liabilities and the position statement with your client, ideally in advance of the hearing date so that if checks are necessary they can be carried out. The client should have the opportunity to check the asset list accords with their understanding. This may only be a provisional schedule if some matters still need clarification, but it should still be done.

3.8 Verify income and earning capacity with the client (again in advance of the hearing date if possible), noting comments on the other party’s assets and income.

3.9 Check that the client understands the current proposals and their net effect.

3.10 Inform the client of any additional or further proposals that could be made, and why they may or may not be advisable.

3.11 In respect of all offers to be made at court:

• record in summary all offers intended to be made;

• ensure that the client is aware of total offer terms;

• check that the client agrees and understands such terms;

• record the client’s agreement to proposals.

3.12 In respect of proposals made by the other party:

• record any offer made by the other party;

• ensure that the client understands the nature of the offer;

• advise as to whether the other party’s offer should be accepted or not, and why.

3.13 If there are any issues upon which you, counsel or the client are uncertain, or which require further advice (eg tax or the effect of pension sharing), then the client should be expressly advised as to this and as to the options available. Options include:

• Adjourn to a second FDR to obtain the information.

114 Guides to Good Practice • Agree all matters that may be agreed and adjourn the remainder (although this is sometimes difficult to achieve as the other party often refuses).

• Only if the client is clear that they wish to proceed notwithstanding the lack of relevant information or advice should agreement as to these matters be finalised, but this should be recorded and signed by the client.

3.14 Judges may put pressure on parties to settle – for example ‘you’re not leaving this building until you’ve reached agreement’. Advise the client that they are entitled to pursue their claims or further consider an offer of settlement made by the other party after the FDR notwithstanding such pressure, and inform the judge of the advice given to the client.

3.15 Likewise, if a client wishes to continue to negotiate they are entitled to do so. However, if negotiations have already continued for several hours (and there is therefore a concern that the client may now only be seeking to reach agreement in order to bring the day to an end) and/or the offer(s) which the client now seeks to put forward (or accept) would go beyond the advice being given by you or counsel, it is considered preferable to advise the client that there is a risk of deciding in haste and repenting at leisure, and that negotiations can continue in inter- solicitor correspondence beginning, if necessary, the following day. If the client wishes to continue notwithstanding this advice, a full note of the advice given should be recorded. Even if an FDR is unsuccessful on the day, a round-table meeting shortly afterwards can prove effective, as both parties will have heard what the judge said at the FDR and this may have redefined their expectations. Such a meeting should be treated in the same careful way as an FDR, particularly in relation to the status of any offers made and ancillary negotiations.

3.16 If no agreement is reached at court, ensure the client is aware that offers made during the FDR appointment cannot be relied on subsequently (for example in relation to making or resisting an application for costs) unless the offer(s) are re-stated in open correspondence after the appointment. If an offer is expressly left open for acceptance, it can subsequently be withdrawn at any time prior to its acceptance by the other party.

4. In respect of any proposed agreement

4.1 All the terms of the proposed agreement should be reduced to writing either in terms of a consent order or heads of agreement. As many negligence claims arise over consent orders drafted in haste at court, the terms should be read over to the client, who should confirm that they:

• understand the terms of the agreement and the financial effect of the agreement upon them;

• have received advice in relation to the proposed terms;

• do not wish for a further period to consider the matter; and agree to be bound by the proposed terms.Heads of agreement should be the norm in all bar the most straightforward cases. The obvious exception is if a well thought out consent order has been drafted prior to the FDR and only minor amendments are necessary to tailor this to the agreement

Guides to Good Practice 115 reached at the FDR.All minutes of order and heads of agreement should be signed by the client, by counsel if instructed, or by you if counsel is not instructed.

4.2 Specifically ask whether the client would wish to have time to consider and reflect on the matter before finalising any agreement and, if so, what period may be appropriate. In the event of the client wanting this opportunity, then the matter may be listed for mention, such mention to be vacated upon the lodging of a consent order and the court advised accordingly.

4.3 If a fully drafted consent order is not approved by the court at the conclusion of the FDR, you/ counsel must know and the client must understand the status of any signed agreement before leaving court. It should be expressly stated and recorded whether matters are Xydhias-compliant (ie heads of agreement susceptible to a ‘show cause’ application); Rose-compliant (ie an unperfected order); or open or subject to FDR privilege or otherwise.

4.4 If heads of agreement are signed (as opposed to an unperfected or perfected order being made), ensure the client understands that the agreement does not have the same concluded status of an order (whether perfected or not) but that if one party or the other seeks to resile from the agreement, a ‘show cause’ application may be made for the agreement to be made an order of the court.

4.5 In any case where agreement is reached but a fully drafted consent order is not approved at the conclusion of the FDR, both you/counsel and client should be aware that, on a subsequent ‘show cause’ application, the question may arise as to whether a particular issue that was not addressed at the FDR hearing (whether because it could not be resolved that day, was unforeseen, or otherwise) was substantive (ie agreement on the issue was fundamental to the parties’ overall agreement) or was merely ‘some point of drafting, detail or implementation ... that was open for determination by the court at its abbreviated hearing’ (per Thorpe LJ in Xydhias v Xydhias [1999] 1 FLR 683 at 693D/E and 692H). In other words, in such a situation it should be agreed between the parties’ legal representatives (so far as possible) whether any outstanding issues are fundamental ‘deal breakers’ or will be for determination for a court if agreement cannot subsequently be reached. Particular care needs to be taken to avoid a complaint by a client who, having signed heads of agreement, ‘loses’ on a particular issue at a subsequent abbreviated hearing and thereafter complains that, if they had known that they could lose on that particular issue but still be held to their substantive agreement, they would not have reached agreement in the first place.

Notes 1. This good practice guidance does not and cannot affect any obligations in law, specific court orders or rules of professional conduct.

2. Good practice guidance can inevitably only deal with generality of situations. It cannot be an absolute rule. The facts of any particular case may justify and/or require a lawyer to depart from these guidelines.

3. This guidance applies to all financial order/Schedule 1 CA 1989/TLATA 1996 cases in which FDRs may be used, for the better conduct and approach of family breakdown issues, and not just to cases between Resolution members.

116 Guides to Good Practice This guidance is a slightly adapted version of an article written for the guidance of counsel by Caroline Willbourne, Nicholas Allen, Nicholas Cusworth, Philip Marshall and Alex Verdan of the FLBA, and our grateful thanks are due to them.

See over for guidance notes on position statements/case outlines, and a precedent version.

Guides to Good Practice 117 Appendix A: Guidance Note for Drafting Position Statement/Case Outline

As referred to in paragraph 2.5 of the Guide to Good Practice:

• The aim of the position statement is to provide the judge with a succinct overview of the facts of the case, issues between the parties, and the current position of your client on these issues and the question of settlement, leading into the FDR.

• It should be clearly marked ‘FOR USE AT THE FDR ONLY’ and you must remember to ask for it back at the end of the FDR so that no without prejudice documents remain on the court file.

• It should be easy to read by the judge, and the use of separate sections can make the document far easier to navigate.

• It should be succinct and to the point. Unless more than one hour of court time has been set aside for the hearing (which it would not have in the vast majority of cases), the judge will be either unable to thoroughly review a lengthy document, or in doing so will limit their ability to play their true role within the FDR appointment – that of an effective mediator.

• It is useful for the judge to have a separate schedule of assets and chronology to accompany the position statement. This is to allow ease of cross-referencing by the judge, which will allow them to grasp the key facts and figures more quickly, again freeing their time for the resolution of the case.

• The following sections should be included in a position statement for FDR:

i. Background

This would include the key facts of the marriage and the current position of the parties (and their children).

ii. Assets

Summarise the assets/liabilities/income involved (referring to a separate and easily navigated schedule of assets/income). If liabilities are an issue, then a separate section can be included in this regard (if it requires narrative explanation, ie it is not a debt which is accepted as a ‘matrimonial liability’).

iii. Income

What are the parties’ current incomes (from all sources)? Are there questions regarding earning capacity, if so what is your client’s position on that? Any maintenance paid by one party to another (including child maintenance) can be set out here. See also the points on schedule of assets below.

iv. Other factual points

Separate sections relating to businesses, trusts, foreign elements, liabilities, inheritances etc

118 Guides to Good Practice should be set out. However, it must be remembered that the FDR judge has no power to decide issues of fact between parties. Lengthy exploration of such issues should therefore be avoided. It will simply use up valuable court time for little purpose.

v. Issues

This is where each of the key issues can be identified, and your client’s case on the same set out. Sub-sections are useful (on the basis of ease of navigation).

Capital division

Given that the court’s first task is ‘computation’ as per the Court of Appeal in Charman, a logical approach would be to define what your client considers the ‘pot’ to be, and identify any assets which it is suggested fall outside the pot.

Thereafter the question is what your client says is the fair approach to adopt regarding dividing those assets (both matrimonial and non-matrimonial) between the parties, and how your client would propose that such division is effected.

Income/maintenance

Is this a spousal maintenance case? If so, at what level should maintenance be paid, and for how long? Is capitalisation an option and if so what calculation does your client suggest should be applied?

Other issues such as school fees, agreed child maintenance, and life insurance can be addressed in this section.

Pensions

Your client’s position in relation to pension provision should be set out.

Other

Your client’s case as to other specific factual issues can be separately explored, but as set out above substantial detail is unlikely to assist the court in most cases.

vi. Offers and net effect schedules

A section setting out the current offers, or history of offers will be helpful. A net effect schedule will always be useful, as this would give the judge a clear understanding of what a set of proposals would mean in practice to both parties.

• The schedule of assets should be easy to read, and the total assets easy to identify. A judge will in almost every case want to cross check the proposed awards against the overall asset base so as to ensure that fairness is being achieved between the parties.

Pensions are a separate class of assets. They should be recorded in the schedule but under a separate section. To include them in the overall total can give a very distorted financial picture.

Details of income and expenditure are useful additions to the schedule of assets, but should

Guides to Good Practice 119 again be listed separately. Maintenance being paid and received should be recorded as debits and credits to the parties respectively.

• The chronology should again be easy to read, ideally with ages and key periods (ie length of marriage) being set out in brackets to make things easier.

It should not be bogged down in detail. If the judge’s time is taken trawling through lengthy chronologies, the speed at which they can grasp the key issues and get on with their role as mediator is impeded.

Where the factual matrix of a case warrants a detailed chronology, thought should be given to either highlighting key dates in bold, or using a ‘key date’ chronology as the first page and a full chronology following it.

It must be remembered that the role of an FDR judge is not to determine issues of fact between parties.

120 Guides to Good Practice Appendix B: Precedent Position Statement/ Case Outline

As referred to in paragraph 2.5 of the Guide to Good Practice

WITHOUT PREJUDUCE – FOR USE AT THE FDR ONLY

Case No.:

IN THE PRINCIPAL REGISTRY

OF THE FAMILY DIVISION

IN THE [ ] COUNTY COURT

BETWEEN:

ANITA JANE SMITH

Petitioner

-and-

JOHN HAROLD SMITH

Respondent

HUSBAND’S POSITION STATEMENT/CASE OUTLINE

FOR FDR ON 23 JULY 2012

1. This case summary is intended to be read in conjunction with (1) the chronology and asset schedule and (2) the bundle of relevant correspondence, attached hereto.1

2. Mrs Smith shall be referred to as ‘W’ and Mr Smith as ‘H’ throughout this document.

Background

3. The parties separated just over 2 years ago (27.11.2006) after a 23-year marriage. There are two children, David (17) and Lucy (18). David lives with W at the former matrimonial home (‘the FMH’) in Lower Witham, he is at King Edward’s school (West Laughton) and it is anticipated he will go on to university. Lucy has until recently resided at a friend’s house and is on a gap year. She will attend Cambridge University next year to study medicine. H lives in a rented flat in West Laughton.

1 Precedents of a chronology and asset schedule and bundle of correspondence are not included in this Guide.

Guides to Good Practice 121 4. H (49) runs The Vine Garage in Burnham. He also has a 50% share in a pub/hotel, The Newick Arms Hotel, and he owns a shop, 16 Terminus Road, which is rented to Paddy Power at a rent of £28,000 p.a.

5. W (48) works as a secretary for a local firm of surveyors.

Assets

6. There is agreement as to the value of all the main assets, essentially as per the Order made at the First Appointment (16.10.08). Since the Order, W has had a valuation completed on the hotel, but ‘does not seek to rely on it’, so we presume it is a lower value than that put forward by H. The only fine- tuning to the assets is that W says £450,000 for the shop, whereas the husband says £440,000. Notwithstanding the agreed business valuation, H accepts that a separate figure should be included for stock. As at 31 March 2008, the trade value of the stock was £128,000 (the anticipated sale value of the stock was £186,000) since then the stock has reduced further to £100,000.

7. Accordingly, the main assets are:

(i) Equity in the matrimonial home £1,428,000;

(ii) Pension £373,000 (£322,000 of this is H’s);

(iii) Business assets of £1,280,000, without taking into account the business overdraft, running at £300,000.

There is also a flat in Spain owned by H with a small equity of £49,400.

Liabilities

8. H has very significant liabilities, totalling (excluding the mortgage on the matrimonial home and Spanish property) in excess of £2.4 million. The Vine Garage was purchased in March 2007 for £1,470,000 (£1,200,000 for the building and £270,000 for the goodwill), effectively on 100% borrowing.

9. The business has not been able to sustain the high level of borrowing repayments, hence (notwithstanding H’s significantly reduced drawings) the rise of the overdraft from around £100,000 to its current £300,000. Ideally H would agree with the bank to reschedule the repayments but he is nervous to approach the bank given the reduction in turnover and profit and the bank’s concern at his high level of indebtedness.

Proposals

10. H accepts that W should share equally in the fruits of the marriage partnership. On the basis of our schedule, a strict 50:50 split would give W total assets of £1,379,220. If we separate pension and non-pension assets, this would give her £1,192,698 of capital assets and a pension pot of £186,500 (ie involving a pension transfer to W of £135,500). H’s proposals of 31 October provide W with capital of £1,413,044, ie a lump sum of £1,040,000 plus a pension transfer of H’s entire pension fund giving W a pension fund of £373,044.

11. W is in the process of purchasing a property for £990,000, plus setting up costs of £50,000 (her parents are ‘loaning’ her the money to complete the purchase before the matrimonial home is

122 Guides to Good Practice sold). H’s view is that a figure of around £800,000 is a more appropriate housing fund, but nevertheless he has agreed that W receive a lump sum of £1,040,000 out of the net proceeds of sale of the FMH. This will leave him with approximately £400,000.

12. In order to bring W up to the 50% mark, she would need a further £288,220 (ie the balance of £339,220, less her own pension fund of £51,000). Put crudely, if W requires £1,040,000 from the net proceeds of sale, then the only way H can fund the balance of the lump sum is by way of pension share. This will be a very attractive option for W, as she would be left with a pension fund of £373,000, which she can either draw at age 50 (including taking 25% of the fund by way of lump sum) or it could be left untouched to draw down at a later stage.

13. W has expressed a desire to take the Paddy Power shop but the only way it can be achieved is if she takes less of the liquid capital, hence our alternative offer, dated 1 December 2008 (£950,000 plus the shop worth £440,000). The difficulty is that the bank, who are becoming increasingly concerned about H’s overall level of indebtedness, have made it clear that, in addition to the two loans secured on the shop (ie £300,000 in total), once they lose the ‘comfort’ of H’s interest in the FMH (ie once the home is sold), they will also require the company overdraft to be repaid. Consequently, if the house is sold and the shop is transferred, H will need £600,000 to reduce his borrowing to an acceptable level to the bank. However (even ignoring his own housing needs) he will only receive a maximum of £400,000 cash from the net proceeds of sale.

14. Our proposals of 31 October 2008 provide W with 50% of the overall assets (including H’s business assets). W would receive just short of 75% of the liquid capital, plus the entire accumulated pension. H would only be left with his business assets (the £400,000 equity he receives from the house would be swallowed up by the bank) and a very significant level of indebtedness. H would face immense difficulties raising sufficient funds to re-house himself.

Maintenance

15. In relation to maintenance, the court is referred to BDO Stoy Hayward’s letter of 12 October, which says ‘prior to the purchase of The Vine Garage Mr Smith’s drawings (including pension contributions) were in the region of £300,000 per annum. However the financing of the acquisition and the difficult trading conditions referred to above have adversely affected both cash flow and profits, such that our client’s drawings in the year ended 31 March 2008 were reduced to £42,500 (ie £3,500 per month). They continue currently at this figure which in our view, given the current levels of borrowing and profitability, is the maximum that the business is able to sustain.’

16. H has never received an income from the hotel, as it is has not yet made a profit, and his only other source of income is the rent from the flat at £14,000 per calendar month gross [£11,000 net] (though he hopes that this will increase to around £17,000pa after the rent review in October of this year). Accordingly, H’s total net income is £53,500.

17. It is submitted that, on the basis H will remain responsible for the children’s school fees (£9,000) and, in due course, university fees (probably for both children), his proposal of £25,000 global maintenance is more than generous. Indeed, even to pay maintenance at this level, H is relying on the (far from certain) fact that the financial position of the garage will improve.

Guides to Good Practice 123 18. If W accepts the alternative offer and the Paddy Power shop is transferred to her, she will have a net income of £20,000pa (ie £14,000 gross [£11,000 net] from the shop, plus her own net earnings of £9,286pa). If £17,000 rental income is achieved at the October rent review, this would give W a net income of just in excess of £22,000pa. Conversely, H (deprived of the income from the shop) would have income of £42,500pa, plus a significant liability for school and university fees, plus children’s maintenance.

124 Guides to Good Practice Guide to Good Practice for Lawyers on Working with the Bar in Family Cases

1. Introduction

Family proceedings (whether court-based, collaboratively-based or otherwise) should be conducted cost effectively without compromising the quality of advice that clients crave and deserve, balancing the benefits of any steps taken against the likely costs – financial or emotional. Many family cases are now concluded without the involvement of barristers. However, certain clients will benefit from representation by an effective team of lawyer and barrister in order to achieve an appropriate balance between cost and quality.

When the relationship between the lawyer and barrister is good, the results can be very positive. Issues can be resolved at an earlier stage than may otherwise have been the case. Equally, if it is necessary to go to court, the client benefits from the smooth conduct of the relationship between the lawyer and barrister. Clients involved in the collaborative process can also sometimes benefit from the involvement of a collaboratively trained barrister (often known as ‘collaborative counsel’).

In recent years, there has been a marked shift in emphasis in the way that specialist family lawyers and barristers work together for the benefit of the client. However, there remain practitioners from both branches of the profession who are unsure of the reasonable expectations that each may have of the other. With a view to improving the working relationship between the family lawyer and barristers, this guide deals with the following issues:

• What are the respective roles of the family lawyer and barrister?

• When should a barrister be instructed?

• The selection of a barrister for a particular court or collaborative case.

• How should the barrister of choice be instructed?

• Managing communication between barrister and lawyer.

• Managing conferences.

• Specific issues of good practice in applications for financial orders.

• Preparation for hearing and papers for consideration.

• The hearing.

• Fees.

2. What are the respective roles of the family lawyer and barrister?

The lawyer is entitled to expect that the barrister will:

Guides to Good Practice 125 (a) provide the client with independent, objective, legal advice and draft documentation where necessary in good time and, if instructed in connection with court proceedings, represent the client in court; and

(b) operate as a team player with the lawyer, lay client and any other person involved with the proceedings.

The barrister is entitled to expect that the lawyer will:

(a) Select the appropriate barrister and wherever possible provide instructions in good time.

(b) Ensure that the client understands:

(i) the respective roles of the barrister and the lawyer;

(ii) that each has duties to the court and (if relevant) to the Legal Services Commission that may have to take precedence over the client’s aims and wishes; and

(iii) the likely nature, purpose and objectives of hearings, conferences and any collaborative meeting in which collaborative counsel is involved.

(d) Manage the paperwork, ie ensuring it is easily located and identified and selecting the appropriate documentation to be provided to the barrister.

(e) Define the issues, either alone or in conjunction with the barrister.

(f) Ensure that the client fully understands the advice and/or the issues discussed in conference.

(g) Prepare and file documentation and compile and provide bundles for any court proceedings with input from the barrister as may be appropriate.

(h) Take such other steps to promote and protect the client’s interests and ensure the effective presentation of their case as may be appropriate, taking into account the barrister’s advice.

(i) Support the client and provide an interface between the client and barrister throughout the proceedings.

3. When should a barrister be instructed?

It will not always be necessary for a barrister to be instructed. The decision to instruct should be analysed carefully and discussed with the client. For example, it may be that the complexity of an application for a financial order requires an opinion from a barrister as to the likely outcome or that there is a particular technical issue which would benefit from the specialist advice that the barrister can add. Equally, it may be more appropriate for a barrister to undertake the advocacy at a particular court hearing for a wide variety of reasons.

When a barrister is instructed the instructions should be given in good time so that the barrister’s early advice on tactics, steps to be taken, and prospects of settlement can be acted upon; early instruction also helps to ensure the barrister’s availability for a hearing.

126 Guides to Good Practice The lawyer should endeavour to fix hearing dates as early as possible in conjunction with the barrister’s clerk and court listing.

Once a barrister has been instructed, the lawyer should discuss with them (in public law children cases in particular) whether they should be instructed to attend significant directions hearings. Account should also be taken of the expectation under the Family Procedure Rules 2010 (para 6.5 PD 9A) that the legal representatives attending the first appointment and the FDR appointment will be expected to have full knowledge of the case. The lawyer should therefore consider who is the most appropriate advocate to attend. Where a barrister has been instructed, it may be necessary for them to attend these appointments (although a number of specialist lawyers prefer for cost and other reasons to attend themselves without a barrister).

Barristers are also instructed in the collaborative process (usually, but not necessarily on a joint basis) for a number of reasons including: (i) the provision of legal advice; (ii) to draft questions of/ask questions orally of a jointly instructed expert such as a forensic accountant or surveyor; (iii) to draft consent orders or pre- nuptial/pre-registration agreements; and (iv) to act in a quasi-FDR judicial capacity.

4. The selection of a barrister for a particular court or collaborative case

The careful selection of a barrister is critical to the success of the team representing the lay client. It is a legal services contract requirement that family lawyers undertaking such work retain a preferred list of barristers that is regularly updated to record the particular strengths and weaknesses of individual barristers. Less experienced lawyers, or those who are new to a geographical area, will often find that experienced local Resolution members will be pleased to assist them in identifying a barrister appropriate to a particular case.

The personality of both the lawyer and lay client and the dynamics of their relationship will be important factors in the decision to instruct a particular barrister. The seniority of the barrister will also be relevant. It is advisable to enquire of the lawyer representing the other party to the case whether they have consulted a barrister and, if so, whom – it may be they work particularly effectively with another barrister in searching for an equitable, constructive and non-confrontational solution to cases.

Consideration will sometimes need to be given to the instruction of leading counsel. This will often be the case in weighty public law Children Act cases. It may also be appropriate to instruct a leader on a complex application for a financial order. It is a fairly recent trend at the bar for there to be more flexibility in the role that leading counsel are prepared to play in a particular case. For example, for a heavy application for a financial order that is neither the most complex nor most paper-intensive case, the leader may well be prepared to represent the lay client without the necessity for the expensive addition of a junior barrister. The barrister’s clerk should be content to discuss issues of this nature with the lawyer to ensure that the client’s representation is tailored to their case.

5. How should the barrister of choice be instructed?

5.1 Timing

Instructions should always be provided to the barrister sufficiently in advance of the court hearing, conference or collaborative meeting to which they refer so that the barrister has time to prepare fully

Guides to Good Practice 127 and call for any additional papers or information that may assist them in advising in conference/ meeting.

It should be remembered that the barrister may be in court each day, sometimes some distance away from chambers, and that these commitments reduce the time available for preparing cases. Where last minute instructions have to be given, it is advisable to contact the barrister’s clerk before dispatching the papers in order to check whether it is most efficient to send papers to chambers or whether another arrangement would be more effective.

The barrister and clerk should be aware that it is not appropriate to accept instructions on the barrister’s behalf if it is known that they will have insufficient time to prepare properly for a conference, meeting or hearing. If it becomes apparent that, because of unforeseen circumstances, the barrister will have difficulty in fulfilling commitments with regard to a case, including insufficient time to prepare fully for a conference, meeting or hearing, the lawyer should be informed of this at the very earliest opportunity.

It is considered unproductive, unprofessional and short-sighted of the clerk to accept work for a barrister that cannot be done properly and in good time.

5.2 The contents of instructions

Basic information Certain basic information should always be included in instructions to the barrister, in particular:

(i) The party for whom you are acting.

(ii) The ages of the parties and their children.

(iii) The form the proceedings take (for example, a residence application under the Children Act).

(iv) A statement of the current issues and identification of what advice or action is required.

(v) Where attendance at a court hearing is required, full details of the time and venue should be included in a prominent place on the papers, preferably where the barrister’s clerk can readily find them.

(vi) It is helpful if the instructions provide the contact details of the instructing lawyer, including the telephone number, e-mail address and the name of the particular lawyer with conduct, as the covering letter that should also record this information is sometimes retained by the barrister’s clerk, or mislaid.

(vii) Care should be taken to confine the papers sent to the barrister to those which are relevant to the current issue, or strictly necessary for background reading. Documents should not be sent to the barrister if it is not expected that they should read them.

Documents/enclosures The barrister’s role is not that of a filing clerk! Documents included in the instructions or brief should be identified and their relevance to the case explained unless it is self-evident. This can be done either in the instructions or in the index.

No originals should be submitted to the barrister except by express prior agreement (for example, where they are exceptionally bulky or cannot be copied).

128 Guides to Good Practice Papers should always be sorted logically in chronological order and in separate, clearly indexed bundles including:

(i) Applications and orders.

(ii) Statements.

(iii) Experts’ reports section.

(iv) Notes of advice given previously to the client, whether by the lawyer or by the barrister, notes of conferences and hearings, and letters and attendance notes setting out advice given to the client by the lawyer. In this way, the barrister can be alert to the need to explain to the client any actual or apparent changes of advice or differences of opinion and will be assisted in recognising those cases where a client has particular difficulty in understanding advice or may unreasonably be refusing to accept it.

(v) Attendance notes taken by the lawyer of important meetings, eg proofs of evidence.

(vi) Party and party correspondence.

(vii) Schedule of assets.

(viii) Child support calculation, where relevant.

(ix) A copy of the public funding certificate if appropriate (and of the notice of the other parties’ public funding if appropriate) should be enclosed. The barrister should be informed of any subsequent amendment to the public funding certificate and provided with legible copies of the relevant documents. If not clearly legible, transcripts of hand-written documents should be provided.

(x) A costs schedule or statement of the costs incurred to date, the amount paid and any costs outstanding.

All documents should be tethered in some way but not permanently; ring binders are preferable to more elaborate binding systems though they need to be packed carefully for despatch to the barrister in order to avoid damage in the mail or DX system.

‘People issues’ It can assist the barrister to make a realistic assessment of the case if the instructions explain any difficulties that the lawyer has identified with regard to the client or potential witnesses, for example unwillingness to give evidence, difficulty in recalling events or extreme nervousness. The barrister should be made aware of any specific language problems, disabilities or cultural issues which are relevant to the case. Solicitors should always be mindful that such instructions may come to be released to the client.

6. Managing communication between barrister, lawyer and the client

6.1 The vast majority of barristers welcome direct contact with the lawyer outside conferences, meetings or court hearings. The barrister will need to be informed of important recent

Guides to Good Practice 129 developments as they occur and communicating by fax, telephone or email is the quickest way of achieving this. If the barrister is asked to advise over the telephone it is good practice to ask them to provide a short note of the advice given or to follow it up with your own attendance note of the call to ensure that you have fully understood what is being said. If you are in any doubt about how best to communicate with the barrister outside a conference, meeting or court hearing, ask them.

6.2 For the lay client, counsel’s bedside manner and attitude to the other people concerned with the case are often as important as intellectual ability. For example, at a hearing, whilst the outcome is likely to be of paramount importance to the lay client, the way the case is conducted can be equally or even more important in terms of enabling that client to accept the decision and maintaining or even promoting positive long-term continuing family relationships.

6.3 The lawyer and the barrister should speak plain English to the lay client. Language should be adapted to the needs/understanding of the client. The lawyer and barrister should ensure that any technical exchanges between them are ‘translated’ for the benefit of the client.

6.4 It must be remembered that it is the lay client’s case and they should not be made to feel excluded, patronised or bewildered.

6.5 The lawyer should ensure that the client has understood the key points of the barrister’s advice and of any hearing that may have taken place. A written summary of the conference, the advice given in a collaborative meeting, and of the outcome of the hearing should be prepared for the client. The barrister should be provided with a copy of the summary and of any order that the court has made.

6.6 There may be situations, hopefully rare, in which there has been little time for the barrister to consider the papers properly in advance of a conference, for example where essential material has only just been made available. Where this happens, the lawyer and barrister should explain the circumstances to the client and it should be understood that the best course may be for the barrister to take further time to reflect upon the issues before advising and, if necessary, re- arrange the conference. The barrister’s advice should, of course, be given within a reasonable period thereafter and the client advised of the likely time for receiving it.

6.7 In appropriate children cases, it is appreciated that children’s guardians welcome the opportunity to be included in all aspects of the case, but it is undesirable for this to include guardians joining legal representatives in the robing room/advocates’ room. There are also certain negotiations/drafting exercises that are more appropriately carried out in the absence of guardians.

6.8 Whilst there may be occasions when the lawyer or barrister considers the other’s conduct of the case is open to criticism or they differ in their opinions as to the case, each must be mindful of the need not to undermine the lay client’s confidence in any of their legal advisers at a time when the client may well already be under great stress. Care should be taken that the matter is raised sensitively and ensuring that professional objectivity and respect for everyone involved is retained. The lawyers should try to discuss the matter in private first. However, it should be recognised that the duty to the client overrides the duty to the lawyer/barrister.

130 Guides to Good Practice 6.9 The barrister should not depart from the advice given in conference as a final court hearing approaches without good reason and without explaining to the lawyer in advance, save in very exceptional circumstances.

6.10 The barrister should stay within the parameters of settlement given by the client when negotiating with the other party’s representatives.

6.11 Neither the barrister nor the lawyer should criticise the other lawyer/barrister in the case in conference or in court unless it is essential to the conduct of the case. Should it be necessary to make such a criticism in court, wherever possible this should be specifically discussed and agreed with the lawyer and, where appropriate, also with the client beforehand.

6.12 In an ongoing case of some weight it may be prudent for lawyer and barrister to keep each other aware of any prolonged absence from the office or chambers.

7. Managing conferences

7.1 Every attempt should be made to arrange conferences at times and locations that are convenient to all those who will be attending. It is helpful if an estimate can be made in advance of how long the conference will take and consideration given to who will be attending. If this is not straightforward, the lawyer should speak with the barrister about it, raising issues such as the desirability/propriety of the client’s family or friends attending and whether it is appropriate for work experience students to be present.

7.2 Conferences need not always be held in chambers and it may be better, in some cases, for the barrister to attend at the lawyer’s office. Other possible venues include the professional address of an expert witness (such as an accountant or doctor) or even the client’s business premises if there are substantial business records that are material to the case. Full and early consultation with the barrister’s clerk should enable the most convenient arrangements to be made.

7.3 Shortly prior to the conference and once the barrister has fully read the papers, the barrister and instructing lawyer should speak briefly to ensure that the barrister is fully up to date with any material matters that have arisen since delivery of the papers or so that the barrister and lawyer can raise with each other any particularly significant issues of concern in relation to the case or its conduct. This can avoid unnecessary surprises in conference both for the client and their advisers.

7.4 Provided that it is practical and cost effective, the lawyer with conduct of the case or a representative from their firm who has a working knowledge of the file should attend the conference. If this is not possible, the barrister should be told in advance in order to avoid embarrassment and to ensure that any material issues can be discussed between the lawyer and barrister by telephone or raised by letter prior to the conference. Alternatively, the lawyer should endeavour to be available so that the barrister can telephone them during the conference should the need arise.

7.5 The barrister should not give the impression that their attention is engaged elsewhere, for example by over-using computers during a conference. The barrister can be expected to be

Guides to Good Practice 131 aware of the need for the conference to be conducted in such a way that the lay client is confident that their case is of importance to the barrister. The lay client should feel able to tell the barrister everything that may be material to the issues and to ask for clarification if they have not understood fully what is being said. Interruptions or distractions during the conference can be off-putting for clients and damage their confidence in the barrister.

7.6 References by the barrister to the fact that the papers were being studied late the night before do not inspire confidence in the client. It is important for the barrister to convey to the client that they have studied the papers and have a sound grasp of the facts and issues, eg knowing the names of not only the client but also the relevant family members. How this is done will vary from barrister to barrister and will depend on the circumstances of the case. The care that the barrister has taken can be revealed by their advance preparation of documents such as a schedule of assets, a chronology, a statement of issues or an agenda for the conference.

7.7 The barrister should provide instructing lawyers with copies of notes for the conference, any cases which are referred to, and any schedules or other spreadsheets that have been prepared, either before or during the conference. If possible, this information should be made available to instructing lawyers before the conference.

7.8 Both lawyer and barrister should remain alert to the lay client’s understanding of the advice given/issues discussed and be prepared to repeat tactfully if necessary.

8. Specific issues of good practice in applications for a financial order

8.1 Work should be commenced at an early stage on a table/schedule of assets, which needs to include valuations of all significant assets. The barrister’s instructions should include a copy of the table/schedule, identifying where agreement has been reached and, where full agreement has not been reached, setting out the precise nature of the disagreement.

8.2 Where clear agreement has been reached about particular assets (for example, as to the valuation or division thereof between the parties), it may not be necessary to send the barrister all the paperwork that underlies that agreement. The question needs to be given individual attention in each case.

8.3 Where the barrister is to be sent documents regarding a particular asset, consideration should be given as to whether it is necessary to send historical documents. For example, an outdated valuation of an endowment policy may be relevant where it relates to a significant moment in history of the marriage (for example the date of separation) but it may otherwise be unnecessary paperwork.

8.4 Where child support is material, a CSA/CMEC child support calculation should be included with the instructions wherever possible.

8.5 It is essential for the barrister to be provided with as much information as possible about proposed experts (availability, area of expertise, etc.) prior to the first appointment, first hearing dispute resolution appointment, or any other directions hearing at which the issue is likely to arise.

132 Guides to Good Practice 8.6 An estimate of costs to date needs to be provided to the barrister at all stages. This always needs to identify what payments on account the client has already made and, in some cases, it is necessary to tell the barrister from which fund the client has drawn the money paid.

9. Preparation for hearing and papers for consideration

9.1 The lawyer’s role

• The lawyer owes it to their client and to the barrister to prepare for all court hearings in good time. Whenever a barrister is to be instructed for a hearing, this should be done sufficiently far in advance to allow time for the barrister to consider the issues and advise, for the barrister to settle any papers necessary for the hearing, for negotiations then to take place with a view to settlement, and for any agreed order to be drawn up and forwarded to the court so that adjustments can be made with regard to the listing of the case. The lawyer should ask the barrister who will be acting to advise on settlement in sufficient time to allow settlement to take place.

• A bundle (which can ultimately be used for the court hearing) should be begun as soon as possible. This applies to small cases just as much as big ones. The barrister may wish to give advice as to the content of the bundle – in weighty cases this is advisable.

• The lawyer and barrister should discuss and agree at the earliest stage which of them will take responsibility for the drafting and filing of first appointment documents (in the case of an application for a financial order) and of the President’s Practice Direction documents that (where it applies) must be included in the bundle (see para 4.2 PD 27A). The barrister will usually wish to prepare the skeleton arguments unless it is agreed that the lawyer should be responsible, but responsibility for the drafting should be clearly defined between barrister and lawyer.

• The formal court bundle should be ready no later than seven days before a hearing (para 6.2 PD27A directs that the paginated bundle should be delivered to the barrister not less than three working days before the hearing) and preferably earlier to enable the barrister and any expert witnesses to adopt the appropriate numbering scheme when preparing the case and when drafting documents for the court. The contents and format of the bundle is set out in paragraphs 4 and 5 of PD 27A.

• Where a barrister has been instructed prior to the formal court bundle being prepared and is already in possession of documentation, the lawyer should ascertain whether the barrister prefers to make up and paginate their own bundle from existing documents; it should not be assumed that the barrister will do this. The barrister needs to be provided with a full photocopy of the court bundle unless the matter has already been discussed and they have indicated otherwise.

• The lawyer should give specific instructions to the barrister on any points that might be material with regard to costs, particularly where they are not apparent from the trial bundle, as may be the case, for example, where they arise from correspondence or from the preparatory handling of the matter.

Guides to Good Practice 133 9.2 The barrister’s role

• The barrister should prepare thoroughly for the hearing, bearing in mind the need to allow the lawyer time to obtain instructions, to gather evidence, to re-manoeuvre and to make final preparations in the light of any advice that the barrister may give when they have read the brief.

• The barrister should avoid giving ‘conditional’ or ‘preliminary’ advice when having the full papers (ie requesting documents/information that would be available to the solicitor) could have allowed complete advice.

• In the event that the barrister considers significant information/documentation to be missing from the papers, the barrister should contact the lawyer to ascertain whether it can be made available within a reasonable period of time, rather than simply returning the papers with a ‘conditional’ or ‘preliminary’ advice.

10. The hearing

10.1 The lawyer’s role

The lawyer with conduct of the case should, if possible, attend the court hearing and be present for negotiations at the door of the court. Whilst this will not always be practical or cost effective, the lawyer’s representative should have a working knowledge of the case and the relevant issues. In addition, it is often helpful, if the lawyer with conduct cannot be present, for them to discuss the case with the barrister by telephone and be available on the telephone during hearings.

10.2 The barrister’s role

• The lawyer with conduct of the case should discuss with the barrister in advance whether they wish to be present during any negotiations outside the court room. In the event that the barrister considers this to be unproductive in the particular circumstances of the case, they should explain the reasons for their view to the lawyer and discuss it with them.

• The barrister should keep the client and the lawyer informed of what is said in any material discussions with the other advocates.

• The barrister should see the judge in private concerning the case only if requested to do so by the judge or if the client agrees and, in any event, inform the client and the lawyer of what is said to the extent permitted by the judge.

• The barrister should not permit familiarity with another advocate to undermine the client’s confidence in the barrister’s commitment to present their case effectively.

• The barrister should be receptive to receiving instructions and comments during the course of the hearing. However, the need for the barrister to be able to consider what a witness, another advocate, or the judge is saying must be respected. The lawyer (or their representative) is responsible for maintaining the balance.

134 Guides to Good Practice • The matter of costs should be discussed in advance so that the client, lawyer and barrister are aware of the issues around whether costs orders are likely to be sought. The barrister should be prepared to argue any reasonable point on costs. If any aspect of costs is not reasonably arguable, wherever possible that should be explained by the barrister and understood before the matter is addressed in court.

• Particularly in money cases, the barrister should be conscious of the fact that costs are not only emotive to the client but also potentially very significant financially. Therefore the barrister should not capitulate too quickly if there should be any costs arguments at the end of the trial, and should give enough time, attention and argument to this issue.

• The barrister should be prepared to spend time with the client at the end of the case, especially if the outcome was disappointing.

• The barrister should inform the lawyer promptly after the hearing, of the agreement reached or order made, if there was no representative of the lawyer there.

• The barrister should be aware of the emotional needs of the client during the hearing and/or negotiations.

• In the often highly charged negotiations at the court door, the lawyer and barrister should work together to ensure that the client feels, and will continue to feel, in control of any agreement reached and fully understands its terms and implications.

11. Fees

In privately funded cases (as opposed to publicly funded cases where the fixed scale of graduated fees applies) there can be advance discussion between the lawyer and barrister’s clerk about fees or charging rates so that:

• Information as to the cost of instructing the barrister can be made available to the client and, because this aspect of charging differs from the way that solicitors’ time is charged for, the client should be made aware that barristers’ fees will often be incurred in advance of the work being carried out (the concept of ‘deemed’ brief fees and/or when briefs for court hearings are delivered). Ideally this information will be secured well in advance and shared with the client so that informed decisions can be made as regards settlement. It may also be appropriate to share this information with the other side for reasons relating to costs applications.

• Where the client is paying privately, the lawyer can ensure that they have appropriate security for the barrister’s fees.

• Instructions can be withdrawn from the barrister or declined, without compromising the ability of another advocate to prepare the case in time, if the fee to be charged or offered is not reasonable.

• The liability so far incurred for fees can be readily ascertained at any stage in the case, for example where information as to costs is required for a court hearing or where an unavoidable change of barrister occurs.

Guides to Good Practice 135 The lawyer owes a duty to their client to ensure that the barrister’s fees are fair and reasonable and to negotiate where appropriate. The lawyer should seek the client’s approval before concluding an agreement as to fees.

Where an estimate of fees has been given by the barrister, they should alert the lawyer if it appears likely that the estimate will be exceeded, for example because of the complexity of the matter or developments in the case.

Where no prior agreement has been reached as to the barrister’s fee for advising or drafting documents, the lawyer should not be afraid to challenge the clerk about the level of fee charged if it appears unsustainable in proportion to the issues involved and to the likely level of preparation time required.

The barrister should be prepared to justify any fee charged by reference to such factors as the time spent and the importance/complexity of the issues involved. It is helpful if a breakdown of the time spent is included on or accompanies the fee note.

Note 1. This good practice guidance does not and cannot affect any obligations in law, specific court orders or rules of professional conduct.

This guidance applies to all family law cases for the better conduct and approach of family breakdown issues, and not just to cases between Resolution members.

136 Guides to Good Practice Guide to Good Practice for Instructing Experts in Applications for a Financial Order

This good practice guidance covers the instruction of financial experts for court proceedings. Those looking to instruct an interdisciplinary team for DR purposes are referred to the ‘Assembling the Dispute Resolution Team’ chapter of the Resolution Family Disputes Handbook.

1. Introduction

Applications for financial orders in matrimonial or civil partnership proceedings should be conducted cost effectively and costs not incurred without justification, but in some cases it will be necessary for expert evidence to be obtained to enable the parties to reach an agreement or the court to determine the case. This is usually in relation to the value of particular assets, but an expert can be instructed to give evidence on other matters relevant to the case.

The instruction of experts in family proceedings is governed by Part 25 of the Family Procedure Rules 2010 (FPR) and the associated Practice Direction (PD 25A), which both came into force on 6 April 2011. These provide a detailed procedural framework, and largely replicate Part 35 of the Civil Procedure Rules 1998 (as amended in July 2009). There are transitional provisions in place (para 2.2 PD 25A) and Part 35 CPR and its associated Practice Direction may still apply where proceedings were issued prior to 6 April 2011. However, the court has the power under the FPR 2010 to direct that the new Rules should apply either wholly or in part.

‘The President’s Ancillary Relief Advisory Group Best Practice Guide for Instructing a Single Joint Expert’ produced in November 2002 (Appendix 14 of the Family Law Protocol) (‘The Best Practice Guide’) also provided detailed recommendations regarding the procedure for instructing experts specifically in financial proceedings. While the Best Practice Guide has been superseded by Part 25 and PD 25A FPR 2010, it does contain some helpful practical guidance beyond the scope of PD 25A. Where applicable, that additional guidance has been included within this guide.

Where the instruction of an expert is a consideration, it is important that it is proportionate to the case and how they are instructed is key to this. The court has a duty, under Part 25.1, to restrict expert evidence to that which is reasonably required to resolve the proceedings. The general approach is that single joint experts should be instructed, rather than each party instructing their own expert, and in the event that the parties cannot agree on a single joint expert, an application to the court should be made to resolve this issue, rather than each party instructing their own experts. Baron J said in K v K [2005] 2 FLR 1137 (para 39) that ‘the general practice in the Family Division should be that only joint approaches are acceptable and if there is non-cooperation from one side, then this cannot be circumvented by unilateral action and should be dealt with by an application”. However, this case predates the FPR 2010.

It is worth noting that there are aspects of this position which conflicted with the then procedural rules, being Part 35 of the CPR (and now Part 25 FPR), such as in relation to raising questions of an expert.

Part 25.2(2) defines ‘expert’ and ‘single joint expert’, and the court has power under Part 25.7 to direct that evidence should be given by a single joint expert.

Guides to Good Practice 137 The instruction of a different expert for each party can have the effect of polarising the parties’ positions, rather than bringing them closer to agreement, and can have a significant effect on the parties’ costs.

Practitioners have a duty to consider, at an early stage, what expert evidence may be required. While it is common for experts to be instructed by both clients jointly, there are circumstances where one party will require an expert’s advice themselves. This may be to assist in completing the disclosure process, in preparing a questionnaire following the other party’s disclosure, or in advising on the way in which funds might be raised. There will therefore be certain situations where, in acting in the best interests of a client, the instruction of an expert solely for one party may be vital.

This guide is intended to assist practitioners in advising clients on when expert evidence is required, and instructing the expert in such a way as will be of maximum benefit to the client in assisting them, or the court, in reaching a resolution of the financial matters between the parties. It deals with the following issues:

• When is an expert required?

• What is the role of an expert?

• When to instruct an expert – timing.

• How to select an expert.

• Information to obtain about possible experts prior to first appointment.

• The joint letter of instruction.

• Providing information to the expert.

• Attendance at meetings with the expert or inspections of property.

• Communications with an expert and supplementary instructions.

• The expert’s report.

• Questions following the expert’s report.

• An expert’s attendance at court.

• Best practice if two experts are to be instructed.

• The instruction of ‘shadow experts’ – when it is appropriate and their role.

Please note that draft amendments to Part 25 and PD25A are the subject of a consultation to be concluded by 20 September 2012. The proposed amendments would encourage the court to control and restrict the use of expert evidence.

2. When is an expert required?

The instruction of experts in financial remedy proceedings is most commonly to value land or property, shares or an interest in a company or a business, or to advise on taxation issues and

138 Guides to Good Practice pensions, but expert evidence may be required in relation to a number of other issues, for example medical evidence.

Part 25.1 of the FPR 2010 states that: ‘Expert evidence will be restricted to that which is reasonably required to resolve the proceedings.’ In every case where the instruction of an expert is potentially necessary, the first consideration should be whether the instruction and cost are proportionate to the case. Where the instruction of more than one expert is considered, this should be applied to each possible instruction.

Before deciding whether the instruction of an expert is necessary, it is important that the lawyer discusses with the client the advantages and disadvantages of doing so and whether there are any appropriate alternatives to a formal valuation in that particular case, for example market appraisals, or drive-by valuations. The client should be made aware of the likely cost of instructing an expert, and the lawyer should carry out, with the client, a cost-benefit analysis of obtaining a valuation.

In the event that the client does not agree to the instruction of an expert, it is important that they are advised about the court’s power, under Parts 25.7 and 4.3 FPR 2010, to order such an instruction and that they can be ordered to pay all, or a proportion, of the expert’s fees, if it is considered appropriate (Part 25.8(4)). If the court does not make specific direction, the parties shall be jointly and severally liable for the expert’s fees (Part 25.8(6)).

However, where possible, it is preferable that the instruction of experts is discussed and agreed between the parties at an early stage, usually (but not always) after the exchange of financial disclosure has taken place, whether voluntarily, or within the court process (when permission should be sought at the first appointment, in accordance with Part 9.15 FPR 2010).

3. What is the role of an expert?

In practice, the role of the expert in financial remedy proceedings will be to provide information to enable the parties’ lawyers to advise them, or to resolve a particular issue of dispute between the parties to enable settlement discussions or the court process to progress.

However, under Part 25.3 FPR 2010, an expert, although instructed and paid for by the parties, has a duty to help the court on matters which are within their expertise. This duty overrides any obligation to the person (or persons) from whom they have received the instructions and by whom they will be paid.

Expert evidence can only be produced to the court – whether in the form of a written report, or by calling an expert to give oral evidence at a hearing – with the permission of the court.

A party may be concerned that instructing a single joint expert may not produce the best result for them and that instructing their own expert would be to their advantage. It is the role of the lawyer to explain the benefits of a single joint expert, including that their role is an impartial one. The impartiality of a single joint expert is the most important aspect of their role in assisting to resolve matters between parties, rather than increasing the issues in dispute, which can easily happen if each party instructs their own expert. In any event, even where the parties want to submit evidence from separate experts, the court may direct that the evidence be given by a single joint expert (Part 25.7).

Expert evidence is often subjective and it is not uncommon for different experts to come to different conclusions on the same instructions, which is why finding the right single joint expert can be beneficial in resolving issues. Differing opinions between two experts can make an agreement more difficult to

Guides to Good Practice 139 reach and can lead to a case reaching a final hearing, with all of the costs that involves, when the matter may have been resolved without the need for a final hearing if a single joint expert had been instructed at an early stage.

However, practitioners are under an obligation to consider whether the evidence of a single joint expert is in the best interest of their client. In more substantial asset cases, there may be a justifiable need for each party to have their own expert as the scope for a wide variation in valuations or opinion is greater. The importance of the need for supportive evidence in such cases should not be ignored. In this respect it is possible, under PD 25.5.5, for the parties to agree to instruct separate experts.

In acting in a client’s best interest, it is therefore very important to consider at an early stage what evidence may be needed and approach the other party’s solicitor to try to agree how this should be undertaken as soon as is practicable.

4. When to instruct an expert – timing

The possible need for expert evidence should be considered with the client at the first meeting, if appropriate, and the client should be made aware of the court’s approach to the instruction of single joint experts and the cost implications of such evidence.

If expert evidence is required, it is usual to raise this with the other party at an early stage. If financial remedy proceedings have been commenced, then it may be appropriate to raise the need for such evidence in form E. If the need for expert evidence will prevent one or both parties entering into an FDR hearing at the first appointment, it should be raised in the statement of issues filed with the court prior to the first appointment. Permission to instruct an expert should be sought at the first appointment (Part 9.15 FPR 2010).

If financial remedy proceedings have not been commenced and the parties have agreed to exchange financial information, it may be appropriate to consider what expert evidence is required with the client and then the other party soon after disclosure has been exchanged. This is to ensure that all of the information required to enable the lawyers to advise their respective clients and to enable the parties to make informed decisions about settlement has been obtained at an early stage.

If these issues have not been considered in the early stages of the proceedings, a settlement meeting or FDR hearing may have to be abandoned without a resolution being reached, causing wasted costs, further delay and more stress to the parties.

It will also be important to take into account what further information may need to be provided to an expert and the time it will take to obtain this. This will also be relevant to the proposed timescale for the provision of a report. The proposed timescale set out in the letter of instruction needs to be realistic to take into account that information will be requested by the expert and may take the client some time to produce.

5. How to select a particular expert

A single joint expert should not generally be someone that either party has instructed previously, unless otherwise agreed or if there are good reasons to the contrary.

140 Guides to Good Practice The specialism of the expert required will clearly depend on the evidence that is required in a particular case. Research should be carried out as to an expert’s suitability in a particular case, including requesting a copy of their CV and anonymised details of previous instructions they have received in financial remedy cases. Costs are bound to be a significant consideration, but should not be the only one, as it is important to ensure the expert has the right qualifications and skills to produce a report.

When suggesting particular experts to a client or other party, it is recommended that at least two different names or firms are put forward, with details of the expert’s likely costs and their expertise, to enable both parties to make informed decisions about the identity of the chosen expert.

Authority should be sought from the client to give a potential expert sufficient details of the case to enable them to confirm that no conflict of interest exists prior to their name being put forward as a possible single joint expert. Care should be taken to ensure that the implied duty of confidentiality is not breached.

If the parties cannot agree on the identity of a single joint expert, and there are not already proceedings in place, then an application to the court should be considered to enable the court to resolve this disagreement and order which expert, if any, should be instructed, so that the case can move forward productively. Under Part 25.7(2) FPR 2010, where the parties cannot agree the identity of a single joint expert, the court may select the expert from a list prepared by the parties or direct that the expert be selected in another manner.

It should be noted that not every expert is prepared to accept instructions as a single joint expert given the additional pressures that this can bring. It is important to establish an expert’s willingness to be instructed on this basis, if that is to be the case.

6. Information to obtain about potential experts prior to first appointment

(This section applies equally to cases where financial remedy proceedings have not been issued but the parties have agreed that a single joint expert should be instructed.)

In cases where financial remedy proceedings have been issued, PD 25A must be complied with. Before instructions are given the parties should, so far as appropriate, comply with the guidance at paragraphs 4.1 and 4.2 to make preliminary enquiries of a potential expert and to obtain the following information (para 5.6):

• that there is no conflict of interest;

• that the matter is within their range of expertise;

• that the expert can provide the report within the timescale required;

• whether the expert would be available for any dates that are known to be relevant;

• whether there are any periods when the expert will not be available;

• what the expert’s likely fees will be, including their basis of charging and other terms of business;

• if applicable, whether the expert will accept instructions on a publicly funded basis; and

Guides to Good Practice 141 • whether the expert wishes to make any representations to the court about being named or otherwise identified in any public judgment given by the court.

The parties should also have agreed, if possible, in what proportion the single joint expert’s fee is to be shared between them (at least in the first instance) and when it is to be paid. It is important that this point is clarified, as the default position under Part 25.8(6) is for the court to order joint and several liability.

If the parties intend to seek the court’s direction for use of a single joint expert, they should also comply, so far as appropriate, with PD 25A 4.3 and 4.4. These paragraphs require that by 11am on the working day before the relevant hearing (normally the first appointment) a party should file and serve a written proposal to instruct an expert and a draft order for directions. Practice Direction 25A sets out in detail the recommended content of the proposal and draft order (see Appendix 13B).

If provision of this level of detail is not possible it is good practice to at least bring to the first appointment the names of specific proposed experts, including confirmation of their willingness to accept joint instructions, if that is the case. This enables the court to make specific directions. The time and costs risks associated with unspecific directions, or directions that cannot be implemented should be avoided.

It can also be helpful to ask a potential expert, particularly in relation to the valuation of shares or an interest in a company or business, whether they have standard details of the information they will need to be produced in every case, which will enable them to then ask for more case-specific information.

It is, however, important that in obtaining this information, one party or their solicitor does not use this as an opportunity to undertake informal discussions with the potential expert as this may prejudice their impartiality or at least create suspicions in the mind of the other party’s advisor.

It is often dangerous to accept valuation evidence regarding a company from the company’s own auditors, and caution is therefore advised.

7. The joint letter of instruction

Where a single joint expert is instructed, the instruction should be by jointly agreed letter unless the court directs otherwise (Part 25.8(1)). Paragraph 4.5 of Practice Direction 25A deals with the contents of the letter in detail. The joint letter of instruction therefore should be agreed between the parties, or their solicitors, in advance of the letter being sent to the expert, and both parties or their solicitors should sign the letter.

The joint letter of instruction is the key document that sets out the basis of the evidence that is being sought from the expert and forms the basis of their report.

The information provided to an expert with a joint letter of instruction will depend on the case itself and the level of disclosure that has taken place at the time of the instruction. It may be that the expert is to produce a list of the information that they require, but it is helpful to provide at least basic information and documents to enable the expert to request more detailed information.

If the expert is instructed but proceedings have not been issued, the joint letter of instruction should make it clear to the expert that they may in due course be reporting to the court (PD 25A 2.3).

142 Guides to Good Practice If proceedings have been issued, PD 25A 4.5 specifies that the joint letter of instruction shall be prepared, filed and served on the expert within five working days of the relevant hearing.

If the instruction of an expert has not been, or cannot be, agreed between the parties, then a draft joint letter of instruction should be prepared in advance of the first appointment (or other hearing of an application to instruct a single joint expert if not the first appointment) for the court’s consideration. The court can approve the letter of instruction, with or without amendment as it sees fit, in the event that the parties cannot agree on the terms of the joint letter. If the disagreement occurs after the relevant hearing, the court (or, by prior arrangement, the judge dealing with the proceedings) can be called upon to settle the letter of instruction by email (copied to all parties), and will usually do so without a hearing to avoid delay (Part 25.8(2) and PD 25A 4.6).

It is crucial to allow in the timetable for any delay that may be caused by agreement still needing to be reached on the terms of the letter of instruction, costs or the information to be provided, to ensure that the expert then has sufficient time to obtain further instruction, review this and prepare their report.

Paragraph 4.5 of PD 25A states that the joint letter of instruction should include:

• The context in which the expert’s opinion is sought.

• The specific questions to be answered, ensuring that they:

(i) are within the ambit of the expert’s area of expertise;

(ii) do not contain unnecessary or irrelevant detail;

(iii) are kept to a manageable number and are clear, focused and direct; and

(iv) reflect what the expert has been requested to do by the court.

• A list of the documentation provided, or indexed and paginated bundle, including:

(i) a copy of the order (if applicable) giving permission to instruct the expert;

(ii) an agreed list of essential reading; and

(iii) a copy of PD 25A.

• Confirmation of the contractual basis upon which the expert is retained and in particular by whom, how much and when the expert will be paid.

It is good practice and therefore recommended that the joint letter should also include:

• basic relevant information;

• any assumptions to be made;

• the principal known issues;

• arrangements for attendance at a property, business or accountant’s office or other place; and

• documents necessary for the expert’s consideration of the case, sufficient for the purpose, clearly legible, properly sorted, paginated and indexed.

Guides to Good Practice 143 The issue of timing of the report should also be dealt with specifically in the joint letter of instruction.

Annexes 12C–12E contain three example letters:

• a joint letter of instruction to value a property;

• a joint letter of instruction to value shares in a company/interest in a business; and

• a joint letter of instruction to report on pension sharing (or attachment).

The letters are intended to be a guide to practitioners only – they are not exhaustive of the issues that may need addressing in individual cases. It is important that careful consideration is given to the joint letter of instruction and the key issues on which the expert is being asked to report on a specific case- by-case basis.

8. Providing information to the expert

It is common for the expert, having received the joint letter of instruction, to request further information from one or both of the parties. Any further information should be provided promptly according to the agreed timescale and copies of all information provided to the expert should again be clearly legible, properly sorted, paginated and indexed (where it is proportionate to do so) and copies should be provided to both parties’ solicitors.

Paragraph 4.7 of PD 25A confirms that the expert should be provided promptly with a copy of any new document filed at court, together with an updated document list or bundle index.

The court can direct one party to produce information to the expert where it is not reasonably available to the other party under Part 25.9. Under Part 25.13 the expert may file written requests to the court for directions for the purpose of assisting them in carrying out their functions.

9. Attendance at meetings with the expert or inspections of property

Any meetings with an expert should be proportionate to the case.

In the event that a meeting with the expert, or an inspection of a property or premises for example, is required, it is recommended that either both or neither party attend. If it is only possible or practical for one party to attend, this should be agreed in writing in advance, and practitioners should consider whether it would be appropriate for a contemporaneous attendance note to be requested from the expert of the discussions with one party at the meeting or inspection. The proportionality, particularly in respect of costs, should be considered before such a request is made.

10. Communications with an expert and supplementary instructions

Part 25.8(3) of the FPR provides that any instructions to the expert by one party should be simultaneously copied to the other party.

144 Guides to Good Practice It is good practice for all communications with a single joint expert, including communications both to and from the expert, to be addressed to both parties, or their lawyers, and any communication with one party should be copied to the other.

All communications to the expert by the parties should similarly be sent jointly, unless it is in providing information requested by the expert, for example, in which case it should be copied to the other party simultaneously. This can be done easily with letters and email correspondence, but care should be taken with telephone discussions with an expert. It is recommended that they are avoided, unless it has been agreed in writing between the parties in advance that a discussion can take place. In the event that telephone discussions take place between one party, or their solicitor, and an expert, it is advised that a contemporaneous attendance note is prepared and a copy sent to the other party or their solicitor immediately.

FPR Part 25.8(3) further provides that separate instructions to a single joint expert should only be given with the court’s permission. It is likely the court will consider issues of proportionality and whether or not the other party agrees.

11. The expert’s report

This should be provided in writing (Part 25.5) and served on both parties simultaneously. It is recommended that an additional copy is requested and filed with the court.

The report must comply with the requirements of PD 25A, including that at the end of the report there must be a statement that the expert understands and has complied with their duty to the court (Part 25.10(2)). The report must be verified by a statement of truth. PD 25A 3.3 sets out in detail what should be included.

12. Questions following the expert’s report

Part 25.6 provides that either party may put written questions to the expert within 10 days beginning with the date on which the report was served. This is a significant reduction from the previous position under the CPR, which allows 28 days. The questions may only be put to the expert once, and must be for the purpose of clarification of the report only. In the event the questions go further than that, agreement must be obtained from the other party, or permission from the court.

As with all communications with an expert, they should be copied to the other party, or their solicitor, simultaneously.

13. An expert’s attendance at court

The courts are generally reluctant to hear oral evidence from experts at hearings as it increases the costs for the parties and the judicial time required for the hearing. The instruction of single joint experts means that the attendance of experts at hearings is no longer common place and is now the exception rather than the rule. Part 25.5(2) provides that the court will not direct an expert to attend a hearing unless necessary to do so in the interests of justice.

Guides to Good Practice 145 If it is necessary for an expert to attend court to give oral evidence (usually at the final hearing), this must be with permission from the court. This is usually sought at the FDR hearing when directions for the final hearing are set down.

If there is a possibility that an expert may be required to attend and give evidence to the court, it is important that the listing of a final hearing is carried out subject to the expert’s availability.

The party responsible for the instruction of the expert, or the ‘lead’ solicitor in the case of a single joint expert, must comply with PD 25A 8.1 to 9.3 prior to, during and after the hearing.

If an expert is required to attend court and the hearing is listed for more than one day, it is usual for them to attend on the first day, to enable them to give evidence first, so that the costs of their attendance are kept to a minimum.

It can often be useful for an expert to attend court to hear the evidence of the parties, especially if one or both parties have instructed their own experts, to enable them to hear the other party’s evidence or to support counsel in cross-examination. However, the potential costs do need to be taken into account and the need considered in light of proportionality to the case.

When enquiring as to the costs of an expert preparing a report, this should include the costs of the expert attending court if required to do so, not just of preparing the written report itself.

14. Best practice if two experts are to be instructed

It is worth noting that, following the case of Daniels v Walker [2000] 1 WLR 1382, in some instances there may be a possibility of obtaining the court’s permission to obtain a report from an expert acting for only one party.

In these cases, practitioners should consider what directions are going to be necessary following the instruction of separate experts for each party, such as whether the experts should meet to discuss areas of agreement and disagreement between them and whether this should be recorded in an agreed schedule. The court can order discussions between experts under Part 25.12 and that, following a discussion, the experts prepare a statement for the court setting out the issues on which they agree and disagree, including their reasons for disagreeing (Part 25.12 (3)). This can often be a cost effective way of identifying the areas to be resolved between the parties or by the court. If separate experts are to be instructed, it is important that meetings, discussions and documentation of what can and cannot be agreed is timetabled at an early stage.

Further guidance on the subject of experts’ discussions or meetings are given in paragraphs 6.2 and 6.3 PD 25A.

15. The instruction of ‘shadow experts’ – when it is appropriate and their role

In some cases, it may be necessary to instruct a ‘shadow expert’ to assist in advising the client on matters that are outside the lawyer’s expertise, for example an accountant or tax advisor.

Shadow experts should not be instructed in place of a single joint expert. Where an issue requires

146 Guides to Good Practice expert evidence, a single joint expert should be instructed wherever possible. However, shadow experts can assist in deciding whether expert evidence is required, or in advising the clients on aspects of the expert’s evidence once their report has been provided. They can also assist in reviewing the single joint expert’s report and identifying any further questions that may need to be put to the expert, jointly by the parties where possible.

The instruction of shadow experts should only be considered in cases where it is proportionate, and would be in the client’s best interest to do so. The advice of a shadow expert cannot be put to the court without permission, which is unlikely to be granted in most cases where a single joint expert has been, or could be, instructed.

The instructions of a shadow expert will increase the instructing party’s costs and therefore it is important that the costs implications are considered and discussed with the client before the instruction is carried out. It may be more appropriate for another lawyer in the same firm to advise in place of a shadow expert, if that expertise is available. However, this will not always be the case and therefore shadow experts can be important members of a client’s advisory team, in the right circumstances.

It should also be noted that it will not usually be appropriate for a shadow expert to then be appointed as a single joint expert in the case.

Guides to Good Practice 147 Appendix A: Part 25 FPR 2010 – Experts and Assessors

Duty to restrict expert evidence

25.1. Expert evidence will be restricted to that which is reasonably required to resolve the proceedings.

Interpretation

25.2.—(1) A reference to an ‘expert’ in this Part—

(a) is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of family proceedings; and

(b) does not include—

(i) a person who is within a prescribed description for the purposes of section 94(1) of the 2002 Act (persons who may prepare a report for any person about the suitability of a child for adoption or of a person to adopt a child or about the adoption, or placement for adoption, of a child); or

(ii) an officer of the Service or a Welsh family proceedings officer when acting in that capacity.

(Regulation 3 of the Restriction on the Preparation of Adoption Reports Regulations 2005 (SI 2005/1711) sets out which persons are within a prescribed description for the purposes of section 94(1) of the 2002 Act.)

(2) ”Single joint expert” means an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the applicant) to the proceedings.

Experts – overriding duty to the court

25.3.—(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Court’s power to restrict expert evidence

25.4.—(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must identify—

148 Guides to Good Practice (a) the field in which the expert evidence is required; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it will be in relation only to the expert named or the field identified under paragraph(2).

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

General requirement for expert evidence to be given in a written report

25.5.—(1) Expert evidence is to be given in a written report unless the court directs otherwise.

(2) The court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

Written questions to experts

25.6.—(1) A party may put written questions about an expert’s report (which must be proportionate) to—

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule25.7.

(2) Written questions under paragraph (1)—

(a) may be put once only;

(b) must be put within 10 days beginning with the date on which the expert’s report was served; and

(i) the court directs otherwise; or

(ii) a practice direction provides otherwise.

(3) An expert’s answers to questions put in accordance with paragraph (1) are treated as part of the expert’s report.

(4) Where—

(a) a party has put a written question to an expert instructed by another party; and

Guides to Good Practice 149 (b) the expert does not answer that question, the court may make use of one or both of the following orders in relation to the party who instructed the expert—

(i) that the party may not rely on the evidence of that expert; or

(ii) that the party may not recover the fees and expenses of that expert from any other party.

Court’s power to direct that evidence is to be given by a single joint expert

25.7.—(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.

(2) Where the parties who wish to submit the evidence (‘the relevant parties”) cannot agree who should be the single joint expert, the court may—

(a) select the expert from a list prepared or identified by the instructing parties; or

(b) direct that the expert be selected in such other manner as the court may direct.

Instructions to a single joint expert

25.8.—(1) Where the court gives a direction under rule 25.7(1) for a single joint expert to be used, the instructions are to be contained in a jointly agreed letter unless the court directs otherwise.

(2) Where the instructions are to be contained in a jointly agreed letter, in default of agreement the instructions may be determined by the court on the written request of any relevant party copied to the other relevant parties.

(3) Where the court permits the relevant parties to give separate instructions to a single joint expert, each instructing party must, when giving instructions to the expert, at the same time send a copy of the instructions to the other relevant parties.

(4) The court may give directions about—

(a) the payment of the expert’s fees and expenses; and

(b) any inspection, examination or assessments which the expert wishes to carry out.

(5) The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expenses to the expert.

(6) Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses.

150 Guides to Good Practice Power of court to direct a party to provide information

25.9.—(1) Subject to paragraph (2), where a party has access to information which is not reasonably available to another party, the court may direct the party who has access to the information to prepare, file and serve a document recording the information.

(2) In proceedings under Part 14 (procedure for applications in adoption, placement and related proceedings)—

(a) the court may direct the party with access to the information to prepare and file a document recording the information; and

(b) a court officer will send a copy of that document to the other party.

Contents of report

25.10.—(1) An expert’s report must comply with the requirements set out in Practice Direction 25A.

(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.

(3) The instructions to the expert are not privileged against disclosure.

(Rule 21.1 explains what is meant by disclosure.)

Use by one party of expert’s report disclosed by another

25.11. Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at any relevant hearing.

Discussions between experts

25.12.—(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—

(a) identify and discuss the expert issues in the proceedings; and

(b) where possible, reach an agreed opinion on those issues.

(2) The court may specify the issues which the experts must discuss.

(3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which—

(a) they agree; and

(b) they disagree,

Guides to Good Practice 151 with a summary of their reasons for disagreeing.

Expert’s right to ask court for directions

25.13.—(1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.

(2) Experts must, unless the court directs otherwise, provide copies of the proposed request for directions under paragraph (1)—

(a) to the party instructing them, at least 7 days before they file the requests; and

(b) to all other parties, at least 4 days before they file them.

(3) The court, when it gives directions, may also direct that a party be served with a copy of the directions.

Assessors

25.14.—(1) This rule applies where the court appoints one or more persons under section 70 of the Senior Courts Act 1981 or section 63 of the County Courts Act 1984(1) as an assessor

(2) An assessor will assist the court in dealing with a matter in which the assessor has skill and experience.

(3) The assessor will take such part in the proceedings as the court may direct and in particular the court may direct an assessor to—

(a) prepare a report for the court on any matter at issue in the proceedings; and

(b) attend the whole or any part of the hearing to advise the court on any such matter.

(4) If the assessor prepares a report for the court before the hearing has begun—

(a) the court will send a copy to each of the parties; and

(b) the parties may use it at the hearing.

(5) Unless the court directs otherwise, an assessor will be paid at the daily rate payable for the time being to a fee-paid deputy district judge of the principal registry and an assessor’s fees will form part of the costs of the proceedings.

(6) The court may order any party to deposit in the court office a specified sum in respect of an assessor’s fees and, where it does so, the assessor will not be asked to act until the sum has been deposited.

(7) Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid out of money provided by Parliament.

152 Guides to Good Practice Appendix B: Practice Direction 25A Experts and Assessors

Introduction

1.1

Sections 1 to 9 of this Practice Direction deal with the use of expert evidence and the instruction of experts, and section 10 deals with the appointment of assessors, in all types of family proceedings. The guidance incorporates and supersedes the Practice Direction on Experts in Family Proceedings relating to Children (1 April 2008) and other relevant guidance with effect on and from 6 April 2011.

Where the guidance refers to ‘an expert’ or ‘the expert’, this includes a reference to an expert team.

1.2

For the purposes of this guidance, the phrase ‘proceedings relating to children’ is a convenient description. It is not a legal term of art and has no statutory force. In this guidance it means –

(a) placement and adoption proceedings; or

(b) family proceedings which –

(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to children;

(ii) are brought under the Children Act 1989 in any family court; or

(iii) are brought in the High Court and county courts and ‘otherwise relate wholly or mainly to the maintenance or upbringing of a minor’.

Aims of the guidance on experts and expert evidence

1.3

The aim of the guidance in sections 1 to 9 is to –

(a) provide the court with early information to determine whether expert evidence or assistance will help the court;

(b) help the court and the parties to identify and narrow the issues in the case and encourage agreement where possible;

(c) enable the court and the parties to obtain an expert opinion about a question that is not within the skill and experience of the court;

(d) encourage the early identification of questions that need to be answered by an expert; and

(e) encourage disclosure of full and frank information between the parties, the court and any expert instructed.

Guides to Good Practice 153 1.4

The guidance does not aim to cover all possible eventualities. Thus it should be complied with so far as consistent in all the circumstances with the just disposal of the matter in accordance with the rules and guidance applying to the procedure in question.

Permission to instruct an expert or to use expert evidence

1.5

The general rule in family proceedings is that the court’s permission is required to call an expert or to put in evidence an expert’s report: see rule 25.4(1). In addition, in proceedings relating to children, the court’s permission is required to instruct an expert: see rule 12.74(1).

1.6

The court and the parties must have regard in particular to the following considerations –

(a) proceedings relating to children are confidential and, in the absence of the court’s permission, disclosure of information and documents relating to such proceedings may amount to a contempt of court or contravene statutory provisions protecting this confidentiality.

(b) for the purposes of the law of contempt of court, information relating to such proceedings (whether or not contained in a document filed with the court or recorded in any form) may be communicated only to an expert whose instruction by a party has been permitted by the court (see rules 12.73 and 14.14).

(c) in proceedings to which Part 12 of the FPR applies, the court’s permission is required to cause the child to be medically or psychiatrically examined or otherwise assessed for the purpose of the preparation of expert evidence for use in the proceedings; where the court’s permission has not been given, no evidence arising out of such an examination or assessment may be adduced without the court’s permission (see rule 12.20).

1.7

In practice, the need to have the court’s permission to disclose information or documents to an expert, or to have the child examined or assessed, means that in proceedings relating to children the court strictly controls the number, fields of expertise and identity of the experts who may be first instructed and then called.

1.8

Before permission is obtained from the court to instruct an expert in proceedings relating to children, it will be necessary for the party seeking permission to make enquiries of the expert in order to provide the court with information to enable it to decide whether to give permission. In practice, enquiries may need to be made of more than one expert for this purpose. This will in turn require each expert to be given sufficient information about the case to decide whether or not he or she is in a position to accept instructions. Such preliminary enquiries, and the disclosure of information about the case which is a necessary part of such enquiries, will not require the court’s permission and will not amount to a contempt of court: see sections 4.1 and 4.2 (Preliminary Enquiries of the Expert and Expert’s Response to Preliminary Enquiries).

154 Guides to Good Practice 1.9

Section 4 (Proceedings relating to children) gives guidance on applying for the court’s permission to instruct an expert, and on instructing the expert, in proceedings relating to children. The court, when granting permission to instruct an expert, will also give directions about the preparation and filing of the expert’s report and the attendance of the expert to give evidence: see section 4.4 (Draft Order for the relevant hearing).

1.10

In proceedings other than those relating to children, the court’s permission is not required to instruct an expert. Section 5 (Proceedings other than those relating to children) gives guidance on instructing an expert, and on seeking the court’s permission to use expert evidence, prior to and in such proceedings. Section 5 emphasises that the use of a single joint expert should be considered in all cases where expert evidence is required.

When should the court be asked for permission?

1.11

Any application (or proposed application) for permission to instruct an expert or to use expert evidence should be raised with the court – and, where appropriate, with the other parties – as soon as possible. This will normally mean –

(a) in public law proceedings under the Children Act 1989, by or at the Case Management Conference: see rule 12.25;

(b) in private law proceedings under the Children Act 1989, by or at the First Hearing Dispute Resolution Appointment: see rule 12.31;

(d) in financial proceedings, by or at the First Appointment: see rule 9.15;

(e) in defended matrimonial and civil partnership proceedings, by or at the Case Management Hearing: see rules 7.20 and 7.22.

In this practice direction the ‘relevant hearing’ means any hearing at which the court’s permission is sought to instruct an expert or to use expert evidence.

General matters

Scope of the guidance

2.1

Sections 1 to 9 of this guidance apply to all experts who are or may be instructed to give or prepare evidence for the purpose of family proceedings in a court in England and Wales. The guidance also

Guides to Good Practice 155 applies to those who instruct, or propose to instruct, an expert for such a purpose. Section 10 applies to the appointment of assessors in family proceedings in England and Wales.

2.2

This guidance does not apply to proceedings issued before 6 April 2011 but in any such proceedings the court may direct that this guidance will apply either wholly or partly. This is subject to the overriding objective for the type of proceedings, and to the proviso that such a direction will neither cause further delay nor involve repetition of steps already taken or of decisions already made in the case.

Pre-application instruction of experts

2.3

When experts’ reports are commissioned before the commencement of proceedings, it should be made clear to the expert that he or she may in due course be reporting to the court and should therefore consider himself or herself bound by this guidance. A prospective party to family proceedings relating to children (for example, a local authority) should always write a letter of instruction when asking a potential witness for a report or an opinion, whether that request is within proceedings or pre- proceedings (for example, when commissioning specialist assessment materials, reports from a treating expert or other evidential materials); and the letter of instruction should conform to the principles set out in this guidance.

Emergency and urgent cases

2.4

In emergency or urgent cases – for example, where, before formal issue of proceedings, a without-notice application is made to the court during or out of business hours; or where, after proceedings have been issued, a previously unforeseen need for (further) expert evidence arises at short notice – a party may wish to call expert evidence without having complied with all or any part of this guidance. In such circumstances, the party wishing to call the expert evidence must apply forthwith to the court – where possible or appropriate, on notice to the other parties – for directions as to the future steps to be taken in respect of the expert evidence in question.

Orders

2.5

Where an order or direction requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert – or, in the case of a jointly instructed expert, the lead solicitor – must serve a copy of the order or direction on the expert forthwith upon receiving it.

Adults who may be protected parties

2.6

The court will investigate as soon as possible any issue as to whether an adult party or intended party to family proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct

156 Guides to Good Practice the proceedings. An adult who lacks capacity to act as a party to the proceedings is a protected party and must have a litigation friend to conduct the proceedings on their behalf. The expectation of the Official Solicitor is that the Official Solicitor will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act.

2.7

Any issue as to the capacity of an adult to conduct the proceedings must be determined before the court gives any directions relevant to that adult’s role in the proceedings.

2.8

Where the adult is a protected party, that party’s representative should be involved in any instruction of an expert, including the instruction of an expert to assess whether the adult, although a protected party, is competent to give evidence. The instruction of an expert is a significant step in the proceedings. The representative will wish to consider (and ask the expert to consider), if the protected party is competent to give evidence, their best interests in this regard. The representative may wish to seek advice about ‘special measures’. The representative may put forward an argument on behalf of the protected party that the protected party should not give evidence.

2.9

If at any time during the proceedings there is reason to believe that a party may lack capacity to conduct the proceedings, then the court must be notified and directions sought to ensure that this issue is investigated without delay.

Child likely to lack capacity to conduct the proceedings when he or she reaches 18

2.10

Where it appears that a child is –

(a) a party to the proceedings and not the subject of them;

(b) nearing age 18; and

(c) considered likely to lack capacity to conduct the proceedings when 18, the court will consider giving directions for the child’s capacity in this respect to be investigated.

The duties of experts

Overriding duty

3.1

An expert in family proceedings has an overriding duty to the court that takes precedence over any obligation to the person from whom the expert has received instructions or by whom the expert is paid.

Guides to Good Practice 157 Particular duties

3.2

An expert shall have regard to the following, among other, duties –

(a) to assist the court in accordance with the overriding duty;

(b) to provide advice to the court that conforms to the best practice of the expert’s profession;

(d) to confine the opinion to matters material to the issues between the parties and in relation only to questions that are within the expert’s expertise (skill and experience);

(e) where a question has been put which falls outside the expert’s expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved or, in the rare case, as to whether a second opinion is required on a key issue and, if possible, what questions should be asked of the second expert;

(f) in expressing an opinion, to take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed;

(g) to inform those instructing the expert without delay of any change in the opinion and of the reason for the change.

Content of the expert’s report

3.3

The expert’s report shall be addressed to the court and prepared and filed in accordance with the court’s timetable and shall –

(a) give details of the expert’s qualifications and experience;

(b) include a statement identifying the document(s) containing the material instructions and the substance of any oral instructions and, as far as necessary to explain any opinions or conclusions expressed in the report, summarising the facts and instructions which are material to the conclusions and opinions expressed;

(c) state who carried out any test, examination or interview which the expert has used for the report and whether or not the test, examination or interview has been carried out under the expert’s supervision;

(d) give details of the qualifications of any person who carried out the test, examination or interview;

(e) in expressing an opinion to the court –

158 Guides to Good Practice (i) take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material including research material that the expert has relied upon in forming an opinion;

(ii) describe their own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;

(iii) indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;

(iv) indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;

(f) where there is a range of opinion on any question to be answered by the expert –

(i) summarise the range of opinion;

(ii) identify and explain, within the range of opinions, any ‘unknown cause’, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;

(iii) give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court;

(g) contain a summary of the expert’s conclusions and opinions;

(h) contain a statement that the expert –

(i) has no conflict of interest of any kind, other than any conflict disclosed in his or her report;

(ii) does not consider that any interest disclosed affects his or her suitability as an expert witness on any issue on which he or she has given evidence;

(iii) will advise the instructing party if, between the date of the expert’s report and the final hearing, there is any change in circumstances which affects the expert’s answers to (i) or (ii) above;

(iv) understands their duty to the court and has complied with that duty; and

(v) is aware of the requirements of Part 25 and this practice direction;

(i) be verified by a statement of truth in the following form –

‘I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.’

Guides to Good Practice 159 (Part 17 deals with statements of truth. Rule 17.6 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.)

Proceedings relating to children

Preparation for the relevant hearing

Preliminary enquiries of the expert

4.1

In good time for the information requested to be available for the relevant hearing or for the advocates’ meeting or discussion where one takes place before the relevant hearing, the solicitor for the party proposing to instruct the expert (or lead solicitor or solicitor for the child if the instruction proposed is joint) shall approach the expert with the following information –

(a) the nature of the proceedings and the issues likely to require determination by the court;

(b) the questions about which the expert is to be asked to give an opinion (including any ethnic, cultural, religious or linguistic contexts);

(c) the date when the court is to be asked to give permission for the instruction (or if – unusually – permission has already been given, the date and details of that permission);

(d) whether permission is to be asked of the court for the instruction of another expert in the same or any related field (that is, to give an opinion on the same or related questions);

(e) the volume of reading which the expert will need to undertake;

(f) whether or not permission has been applied for or given for the expert to examine the child;

(g) whether or not it will be necessary for the expert to conduct interviews – and, if so, with whom;

(h) the likely timetable of legal and social work steps;

(i) in care and supervision proceedings, any dates in the Timetable for the Child which would be relevant to the proposed timetable for the assessment;

(j) when the expert’s report is likely to be required;

(k) whether and, if so, what date has been fixed by the court for any hearing at which the expert may be required to give evidence (in particular the Final Hearing); and whether it may be possible for the expert to give evidence by telephone conference or video link: see section 8 (Arrangements for experts to give evidence) below;

(l) the possibility of making, through their instructing solicitors, representations to the court about being named or otherwise identified in any public judgment given by the court.

160 Guides to Good Practice It is essential that there should be proper co-ordination between the court and the expert when drawing up the case management timetable: the needs of the court should be balanced with the needs of the expert whose forensic work is undertaken as an adjunct to his or her main professional duties.

Expert’s response to preliminary enquiries

4.2

In good time for the relevant hearing or for the advocates’ meeting or discussion where one takes place before the relevant hearing, the solicitors intending to instruct the expert shall obtain confirmation from the expert –

(a) that acceptance of the proposed instructions will not involve the expert in any conflict of interest;

(b) that the work required is within the expert’s expertise;

(d) when the expert is available to give evidence, of the dates and times to avoid and, where a hearing date has not been fixed, of the amount of notice the expert will require to make arrangements to come to court (or to give evidence by telephone conference or video link) without undue disruption to his or her normal professional routines;

(e) of the cost, including hourly or other charging rates, and likely hours to be spent, attending experts’ meetings, attending court and writing the report (to include any examinations and interviews);

(f) of any representations which the expert wishes to make to the court about being named or otherwise identified in any public judgment given by the court.

Where parties have not agreed on the appointment of a single joint expert before the relevant hearing, they should obtain the above confirmations in respect of all experts whom they intend to put to the court for the purposes of rule 25.7(2)(a) as candidates for the appointment.

The proposal to instruct an expert

4.3

Any party who proposes to ask the court for permission to instruct an expert shall, by 11 am on the business day before the relevant hearing, file and serve a written proposal to instruct the expert, in the following detail –

(a) the name, discipline, qualifications and expertise of the expert (by way of C.V. where possible);

(b) the expert’s availability to undertake the work;

(c) the relevance of the expert evidence sought to be adduced to the issues in the proceedings and the specific questions upon which it is proposed that the expert should give an opinion (including the relevance of any ethnic, cultural, religious or linguistic contexts);

(d) the timetable for the report;

Guides to Good Practice 161 (e) the responsibility for instruction;

(f) whether or not the expert evidence can properly be obtained by the joint instruction of the expert by two or more of the parties;

(g) whether the expert evidence can properly be obtained by only one party (for example, on behalf of the child);

(h) why the expert evidence proposed cannot be given by social services undertaking a core assessment or by the Children’s Guardian in accordance with their respective statutory duties;

(i) the likely cost of the report on an hourly or other charging basis: where possible, the expert’s terms of instruction should be made available to the court;

(j) the proposed apportionment (at least in the first instance) of any jointly instructed expert’s fee; when it is to be paid; and, if applicable, whether public funding has been approved.

Draft order for the relevant hearing

4.4

Any party proposing to instruct an expert shall, by 11 a.m. on the business day before the relevant hearing, submit to the court a draft order for directions dealing in particular with –

(a) the party who is to be responsible for drafting the letter of instruction and providing the documents to the expert;

(b) the issues identified by the court and the questions about which the expert is to give an opinion;

(d) the disclosure of the report to the parties and to any other expert;

(e) the organisation of, preparation for and conduct of an experts’ discussion;

(f) the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion;

(g) making available to the court at an early opportunity the expert reports in electronic form;

(h) the attendance of the expert at court to give oral evidence (alternatively, the expert giving his or her evidence in writing or remotely by video link), whether at or for the Final Hearing or another hearing; unless agreement about the opinions given by the expert is reached at or before the Issues Resolution Hearing (‘IRH’) or, if no IRH is to be held, by a specified date prior to the hearing at which the expert is to give oral evidence (‘the specified date’).

Letter of instruction

4.5

The solicitor or party instructing the expert shall, within 5 business days after the relevant hearing,

162 Guides to Good Practice prepare (in agreement with the other parties where appropriate), file and serve a letter of instruction to the expert which shall –

(a) set out the context in which the expert’s opinion is sought (including any ethnic, cultural, religious or linguistic contexts);

(b) set out the specific questions which the expert is required to answer, ensuring that they –

(i) are within the ambit of the expert’s area of expertise;

(ii) do not contain unnecessary or irrelevant detail;

(iii) are kept to a manageable number and are clear, focused and direct; and

(iv) reflect what the expert has been requested to do by the court.

(The Annex to this guidance sets out suggested questions in letters of instruction to (1) child mental health professionals or paediatricians, and (2) adult psychiatrists and applied psychologists, in Children Act 1989 proceedings.)

(i) a copy of the order (or those parts of the order) which gives permission for the instruction of the expert, immediately the order becomes available;

(ii) an agreed list of essential reading; and

(iii) a copy of this guidance;

(d) identify any materials provided to the expert which have not been produced either as original medical (or other professional) records or in response to an instruction from a party, and state the source of that material (such materials may contain an assumption as to the standard of proof, the admissibility or otherwise of hearsay evidence, and other important procedural and substantive questions relating to the different purposes of other enquiries, for example, criminal or disciplinary proceedings);

(e) identify all requests to third parties for disclosure and their responses, to avoid partial disclosure, which tends only to prove a case rather than give full and frank information;

(f) identify the relevant people concerned with the proceedings (for example, the treating clinicians) and inform the expert of his or her right to talk to them provided that an accurate record is made of the discussions;

(g) identify any other expert instructed in the proceedings and advise the expert of their right to talk to the other experts provided that an accurate record is made of the discussions;

(h) subject to any public funding requirement for prior authority, define the contractual basis upon which the expert is retained and in particular the funding mechanism including how much the expert will be paid (an hourly rate and overall estimate should already have been

Guides to Good Practice 163 obtained), when the expert will be paid, and what limitation there might be on the amount the expert can charge for the work which they will have to do. In cases where the parties are publicly funded, there should also be a brief explanation of the costs and expenses excluded from public funding by Funding Code criterion 1.3 and the detailed assessment process.

Asking the court to settle the letter of instruction to a single joint expert

4.6

Where possible, the written request for the court to consider the letter of instruction referred to in rule 25.8(2) should be set out in an e-mail to the court and copied by e-mail to the other instructing parties. The request should be sent to the relevant court or (by prior arrangement only) directly to the judge dealing with the proceedings; in the magistrates’ court, the request should be sent to the legal adviser who will refer it to the appropriate judge or justices, if necessary. The court will settle the letter of instruction, usually without a hearing to avoid delay; and will send (where practicable, by e-mail) the settled letter to the lead solicitor for transmission forthwith to the expert, and copy it to the other instructing parties for information.

Keeping the expert up to date with new documents

4.7

As often as may be necessary, the expert should be provided promptly with a copy of any new document filed at court, together with an updated document list or bundle index.

Proceedings other than those relating to children

5.1

Wherever possible, expert evidence should be obtained from a single joint expert instructed by both or all the parties (‘SJE’). To that end, a party wishing to instruct an expert should first give the other party or parties a list of the names of one or more experts in the relevant speciality whom they consider suitable to be instructed.

5.2

Within 10 days after receipt of the list of proposed experts, the other party or parties should indicate any objection to one or more of the named experts and, if so, supply the name(s) of one or more experts whom they consider suitable.

5.3

Each party should disclose whether they have already consulted any of the proposed experts about the issue(s) in question.

164 Guides to Good Practice 5.4

Where the parties cannot agree on the identity of the expert, each party should think carefully before instructing their own expert because of the costs implications. Disagreements about the use and identity of an expert may be better managed by the court in the context of an application for directions. (see paragraphs 5.8 and 5.9 below).

Agreement to instruct separate experts

5.5

If the parties agree to instruct separate experts –

(a) they should agree in advance that the reports will be disclosed; and

(b) the instructions to each expert should comply, so far as appropriate, with paragraphs 4.5 to 4.7 above (Letter of instruction).

Agreement to instruct an SJE

5.6

If there is agreement to instruct an SJE, before instructions are given the parties should –

(a) so far as appropriate, comply with the guidance in paragraphs 4.1 (Preliminary inquiries of the expert) and 4.2 (Expert’s confirmation in response to preliminary enquiries) above;

(b) have agreed in what proportion the SJE’s fee is to be shared between them (at least in the first instance) and when it is to be paid; and

5.7

The instructions to the SJE should comply, so far as appropriate, with paragraphs 4.5 to 4.7 above (Letter of instruction).

Seeking the court’s directions for the use of an SJE

5.8

Where the parties seek the court’s directions for the use of an SJE, they should comply, so far as appropriate, with paragraphs 4.1 to 4.4 (Preparation for the relevant hearing) above.

5.9

The instructions to the SJE should comply, so far as appropriate, with paragraphs 4.5 to 4.7 above (Letter of instruction).

Guides to Good Practice 165 The court’s control of expert evidence: consequential issues

Written questions

6.1

Where –

(a) written questions are put to an expert in accordance with rule 25.6, the court will specify the timetable according to which the expert is to answer the written questions;

(b) a party sends a written question or questions under rule 25.6 direct to an expert, a copy of the questions must, at the same time, be sent to the other party or parties.

Experts’ discussion or meeting: purpose

6.2

In accordance with rule 25.12, the court may, at any stage, direct a discussion between experts for the purpose outlined in paragraph (1) of that rule. Rule 25.12(2) provides that the court may specify the issues which the experts must discuss. The expectation is that those issues will include–

(a) the reasons for disagreement on any expert question and what, if any, action needs to be taken to resolve any outstanding disagreement or question;

(b) explanation of existing evidence or additional evidence in order to assist the court to determine the issues.

One of the aims of specifing the issues for discussion is to limit, wherever possible, the need for the experts to attend court to give oral evidence.

Experts’ discussion or meeting: arrangements

6.3

Subject to the directions given by the court under rule 25.12, the solicitor or other professional who is given the responsibility by the court (‘the nominated professional’) shall – within 15 business days after the experts’ reports have been filed and copied to the other parties – make arrangements for the experts to meet or communicate. Subject to any specification by the court of the issues which experts must discuss under rule 25.12(2), the following matters should be considered as appropriate –

(a) where permission has been given for the instruction of experts from different disciplines, a global discussion may be held relating to those questions that concern all or most of them;

(b) separate discussions may have to be held among experts from the same or related disciplines, but care should be taken to ensure that the discussions complement each other so that related questions are discussed by all relevant experts;

166 Guides to Good Practice (c) 5 business days prior to a discussion or meeting, the nominated professional should formulate an agenda including a list of questions for consideration. The agenda should, subject always to the provisions of rule 25.12(1), focus on those questions which are intended to clarify areas of agreement or disagreement.

Questions which repeat questions asked in the letter of instruction or which seek to rehearse cross-examination in advance of the hearing should be rejected as likely to defeat the purpose of the meeting.

The agenda may usefully take the form of a list of questions to be circulated among the other parties in advance and should comprise all questions that each party wishes the experts to consider.

The agenda and list of questions should be sent to each of the experts not later than 2 business days before the discussion;

(d) the nominated professional may exercise his or her discretion to accept further questions after the agenda with list of questions has been circulated to the parties. Only in exceptional circumstances should questions be added to the agenda within the 2-day period before the meeting. Under no circumstances should any question received on the day of or during the meeting be accepted. This does not preclude questions arising during the meeting for the purposes of clarification. Strictness in this regard is vital, for adequate notice of the questions enables the parties to identify and isolate the expert issues in the case before the meeting so that the experts’ discussion at the meeting can concentrate on those issues;

(e) the discussion should be chaired by the nominated professional. A minute must be taken of the questions answered by the experts. Where the court has given a direction under rule 25.12(3) and subject to that direction, a Statement of Agreement and Disagreement must be prepared which should be agreed and signed by each of the experts who participated in the discussion. In accordance with rule 25.12(3) the statement must contain a summary of the experts’ reasons for disagreeing. The statement should be served and filed not later than 5 business days after the discussion has taken place;

(f) in each case, whether some or all of the experts participate by telephone conference or video link to ensure that minimum disruption is caused to professional schedules and that costs are minimised.

Meetings or conferences attended by a jointly instructed expert

6.4

Jointly instructed experts should not attend any meeting or conference which is not a joint one, unless all the parties have agreed in writing or the court has directed that such a meeting may be held, and it is agreed or directed who is to pay the expert’s fees for the meeting or conference. Any meeting or conference attended by a jointly instructed expert should be proportionate to the case.

Guides to Good Practice 167 Court-directed meetings involving experts in public law Children Act cases

6.5

In public law Children Act proceedings, where the court gives a direction that a meeting shall take place between the local authority and any relevant named experts for the purpose of providing assistance to the local authority in the formulation of plans and proposals for the child, the meeting shall be arranged, chaired and minuted in accordance with the directions given by the court.

Positions of the parties

7.1

Where a party refuses to be bound by an agreement that has been reached at an experts’ discussion or meeting, that party must inform the court and the other parties in writing, within 10 business days after the discussion or meeting or, where an IRH is to be held, not less than 5 business days before the IRH, of his or her reasons for refusing to accept the agreement.

Arrangements for experts to give evidence

Preparation

8.1

Where the court has directed the attendance of an expert witness, the party who is responsible for the instruction of the expert shall, by the specified date or, where an IRH is to be held, by the IRH, ensure that –

(a) a date and time (if possible, convenient to the expert) are fixed for the court to hear the expert’s evidence, substantially in advance of the hearing at which the expert is to give oral evidence and no later than a specified date prior to that hearing or, where an IRH is to be held, than the IRH;

(b) if the expert’s oral evidence is not required, the expert is notified as soon as possible;

(c) the witness template accurately indicates how long the expert is likely to be giving evidence, in order to avoid the inconvenience of the expert being delayed at court;

(d) consideration is given in each case to whether some or all of the experts participate by telephone conference or video link, or submit their evidence in writing, to ensure that minimum disruption is caused to professional schedules and that costs are minimised.

Experts attending court

8.2

Where expert witnesses are to be called, all parties shall, by the specified date or, where an IRH is to be held, by the IRH, ensure that –

168 Guides to Good Practice (a) the parties’ advocates have identified (whether at an advocates’ meeting or by other means) the issues which the experts are to address;

(b) wherever possible, a logical sequence to the evidence is arranged, with experts of the same discipline giving evidence on the same day;

(c) the court is informed of any circumstance where all experts agree but a party nevertheless does not accept the agreed opinion, so that directions can be given for the proper consideration of the experts’ evidence and opinion and of the party’s reasons for not accepting the agreed opinion;

(d) in the exceptional case the court is informed of the need for a witness summons.

Action after the final hearing

9.1

Within 10 business days after the Final Hearing, the solicitor instructing the expert shall inform the expert in writing of the outcome of the case, and of the use made by the court of the expert’s opinion.

9.2

Where the court directs preparation of a transcript, it may also direct that the solicitor instructing the expert shall send a copy to the expert within 10 business days after receiving the transcript.

9.3

After a Final Hearing in the Family Proceedings Court, the (lead) solicitor instructing the expert shall send the expert a copy of the court’s written reasons for its decision within 10 business days after receiving the written reasons.

Appointment of assessors in family proceedings

10.1

The power to appoint one or more assessors to assist the court is conferred on the High Court by section 70(1) of the Senior Courts Act 1981, and on a county court by section 63(1) of the County Courts Act 1984. In practice, these powers have been used in appeals from a district judge or costs judge in costs assessment proceedings – although, in principle, the statutory powers permit one or more assessors to be appointed in any family proceedings where the High Court or a county court sees fit.

10.2

Not less than 21 days before making any such appointment, the court will notify each party in writing of the name of the proposed assessor, of the matter in respect of which the assistance of the assessor will be sought and of the qualifications of the assessor to give that assistance.

Guides to Good Practice 169 10.3

Any party may object to the proposed appointment, either personally or in respect of the proposed assessor’s qualifications.

10.4

Any such objection must be made in writing and filed and served within 7 business days of receipt of the notification from the court of the proposed appointment, and will be taken into account by the court in deciding whether or not to make the appointment.

170 Guides to Good Practice Appendix C

Example: joint letter of instruction to value a property

Mr J Smith

Smith Surveyors & Co

123 Main Street

Uptown

UP1 2HA

Dear Sir

Valuation Report for the Purposes of Family Proceedings

Mr and Mrs Jones: Uptown House, Main Street, Uptown, UP5 2DR

This letter is written on the joint instruction of Mr and Mrs Jones, who are involved in divorce and associated financial proceedings in the Uptown County Court.

Mr Jones is represented by Mr White of A Firm LLP and Mrs Jones is represented by Ms Green of Law & Co Solicitors of 65 New Street, Uptown, UP1 3KT (Ref: SG).

[It has been agreed] or [An order has been made by District Judge Smith in the Uptown County Court on [ ]] that a report should be prepared by a Single Joint Expert about the above named property. [A copy of the order is enclosed]

The purpose of this letter is to set out your formal instructions to act as the Single Joint Expert in this matter.

1 Background

Uptown House is registered under title number [ ] with HM Land Registry. The [freehold][leasehold] title is owned by Mr and Mrs Jones. Mrs Jones is currently living at the property with the parties’ three children.

[Include a description of the property including:

• who owns the property

• title number or whether unregistered

Guides to Good Practice 171 • whether detached, semi-detached or terraced

• number of bedrooms and reception rooms

• whether there is any land with the property

• whether the property, or any part of it is let, and

• what the property is used for, ie residential, commercial etc]

2 Preliminary information supplied

With this letter we are attaching the following preliminary information:

[This list is not exhaustive. The expert may have their own list of information that needs to be provided at the outset, but provision of the following information should be considered:

1. court order containing direction for valuation

2. office copy entries/Index Map search for the property

3. copies of any lease or tenancy agreement(s) relating to the property

4. plans (if relevant)

You should, at your discretion, ask Mr and Mrs Jones for any additional information that you require, but all requests should be made in writing and copied to both parties’ solicitors.

3 Nature of instructions

Your instructions are to prepare a report as the single joint expert on the following issues:

(a) The [fair][market] value of Uptown House;

(b) [Consider any other issues particular to the property being valued]

When preparing your report, you should assume the following:

• a willing seller;

• sale with vacant possession and unencumbered; and

• the best price which a willing buyer could reasonably be expected to pay a willing seller for the purchase of the property.

• [any other assumptions the single joint expert is to make in preparing report]

As you will be aware, the instruction of experts in family proceedings is set out in Part 25 of the Family Procedure Rules 2010 (‘FPR’). Please note in particular Part 25.10 of the FPR, which sets out details of the contents of an expert’s report and the statement required at the end of your report under Part 25.10(2).

172 Guides to Good Practice We are attaching a copy of FPR Part 25 and of the Practice Direction to FPR Part 25, known as PD25A.

As a jointly instructed expert you should not enter into correspondence or engage in conversations with one party or their advisers without copying it to the other party or their solicitor, as your role in the proceedings is an impartial one.

If there is any aspect of this letter which is unclear, please write to both A Firm LLP and Law & Co Solicitors to raise any issues or questions which may arise, including proportionality, lack of clarity or completeness in the instructions and/or the possible effect on fees of complying with the instructions.

[Although this instruction is not following a court order, it is possible that you] [You should be aware that you] may be required to give evidence in person to the Court following your report, by attending a hearing in the case. [Please confirm that you would be willing to do so and if you are aware of any dates that you are unavailable in the next [ ] months, please notify us of these.]

4 Inspecting the Property

You will need to carry out an inspection of the property and both parties or their representatives [or neither party – consider a third party] should be present at the inspection. We suggest you should arrange a time which is mutually convenient to both by contacting [Mr and Mrs Jones directly] [both parties’ solicitors].

5 Contact details

Mr Jones can be contacted on [Telephone number and email]. Mrs Jones can be contacted on [Telephone number and email].

[Consider whether it is appropriate in each case to include the parties’ contact details in the letter as one party may not want the other party to have their contact details in some circumstances. It may be more appropriate for the expert to contact the solicitors for their respective clients’ contact details].

6 Timing

[The court has ordered] or [it has been agreed] that this report should be produced by no later than [ ].

If you believe that you cannot prepare your report within that timescale please let us know as soon as possible and provide an indication of the timescale that you would consider realistic to complete your report.

7 Your fees

Mr and Mrs Jones accept that they will each be responsible for 50% of your charges and each solicitor should be invoiced for one half of your fees [or alternative details as agreed or ordered]. Separate invoices should be addressed to [each firm of solicitors] [each client].

Guides to Good Practice 173 [NB Consider what the appropriate costs position should be for the costs associated with raising questions after the report. These costs will usually be in addition to the costs of the main report and therefore how they are to be paid should be dealt with at the outset. A request for this to be included in the directions made by the court is suggested, eg:

In the event that either party raises questions about your report, the party who raises those questions will be responsible for your costs of answering the questions and a separate invoice should be raised for that purpose [or alternative details as agreed or ordered].]

You have indicated that you envisage your fee will be [£ ] plus VAT for the production of your report [inclusive or exclusive of expenses/disbursements]. [Please do not start work on your report until you have provided us with your costs estimate and that estimate has been accepted by both parties.]

Please also indicate what you fees will be for attendance at a hearing, in the unlikely event that this is required.

Law & Co Solicitors have confirmed their agreement to these instructions by countersigning this letter/ writing to you direct.

Could you please send one copy of your report to each solicitor and one additional copy to us for filing at court.

We look forward to hearing from you.

Yours faithfully

A FIRM LLP Law & Co

Dated:

174 Guides to Good Practice Appendix D

Example joint letter of instruction to value shares in a company/interest in a business

Mrs A Brown

Brown Accountants LLP

35 River Street

Uptown

UP1 2GE

Dear Madam

Valuation Report for the Purposes of Family Proceedings

Mr A and Mrs S Jones: ABC Limited

This letter is written on the joint instruction of Mr and Mrs Jones, who are involved in divorce and associated financial proceedings in the Uptown County Court.

Mr Jones is represented by Mr White of A Firm LLP and Mrs Jones is represented by Ms Green of Law & Co Solicitors of 65 New Street, Uptown, UP1 3KT (Ref: SG).

[It has been agreed] or [An order has been made by District Judge Smith in the Uptown County Court on [ ] that a report should be prepared by a Single Joint Expert about the above named company. [A copy of the order is enclosed]

The purpose of this letter is to set out your formal instructions to act as the Single Joint Expert in this matter.

Background of company

[Briefly describe nature of business and party or parties’ role in it, family connections, role of third parties.]

Preliminary information supplied

With this letter we are attaching the following preliminary information:

Guides to Good Practice 175 [This list is not exhaustive. The expert may have their own list of information that needs to be provided at the outset, but provision of the following information should be considered.]

[Also see Charles J’s comments on the likely information to be required by an expert valuing a company, the likely questions to raise of the expert, and other issues arising following the information produced and the questions raise in D v D [2007] EWHC 278 (Fam) at paragraph 106.]

• the court order containing direction for valuation.

• pages [x to y] of Mr and/or Mrs Jones’ Form E (relevant to company/business);

• the memorandum and articles of association of the company/partnership deed;

• the shareholders’ agreement dated [ ] (if a company);

• the accounts for the last three years;

• the management accounts since the last year end;

• the shareholders’ register (if a company);

• the register of directors (if a company).

You should, at your discretion, ask Mr and Mrs Jones for any additional information that you require, but all requests should be made in writing and copied to both parties’ solicitors.

Nature of instructions

Your instructions are to prepare a report as the Single Joint Expert on the following issues:

[Consider carefully what the expert is being asked to report on. This list is intended to cover a number of the questions that may be raised, but is not exhaustive, and not all of the issues will be relevant in every case.]

• the value of Mr and/or Mrs Jones’ shares in ABC Limited;

• the ways in which that value could be realised whether by a sale, a purchase by the company of its own shares, or otherwise by [Mr and/or Mrs Jones];

• the tax consequences of:

– a sale of shares; or

– a transfer of shares between Mr and Mrs Jones;

• the income which Mr and/or Mrs Jones is and will be able to draw if ABC Limited is retained;

• [any assumptions the single joint expert is to make in preparing their report].

As you will be aware, the instruction of experts in family proceedings is set out in Part 25 of the Family Procedure Rules (‘FPR’). Please note in particular Part 25.10 of the FPR which sets out details of the contents of an expert’s report and the statement required at the end of your report under Part 25.10(2).

176 Guides to Good Practice We are attaching a copy of Part 25 FPR and of the Practice Direction to Part 25 FPR, known as PD25A.

[Although this instruction is not following a court order, it is possible that you] [You should be aware that you] may be required to give evidence in person to the court following your report, by attending a hearing in the case. [Please confirm that you would be willing to do so and if you are aware of any dates that you are unavailable in the next [ ] months, please notify us of these.]

Meeting the parties/visiting the company

[Consider whether a meeting is necessary and proportionate to the case.]

In the event that you feel it is necessary to visit ABC Limited and/or meet Mr and/or Mrs Jones, then both parties or their representatives should be present at all meetings. We suggest you should arrange a time which is mutually convenient to both by contacting [both parties directly][both parties’ solicitors].

Contact details

Mr Jones can be contacted on [telephone number and email]. Mrs Jones can be contacted on [telephone number and email].

You may also wish to speak with the company/business accountants, who have authority to disclose information to you. If you do, their contact details are as follows:

[]

Tel:

E-mail:

Timing

[The court has ordered] or [it has been agreed] that this report should be produced by no later than [ ].

Guides to Good Practice 177 Your fees

[NB Consider what the appropriate costs position should be for the costs associated with raising questions after the report. These costs will usually be in addition to the costs of the main report and therefore how they are to be paid should be dealt with at the outset. A request for this to be included in the directions made by the court is suggested, eg:

Please also indicate what your fees will be for attendance at a hearing, in the unlikely event that this is required.

Law & Co Solicitors have confirmed their agreement to these instructions by countersigning this letter/ writing to you direct.

Could you please send one copy of your report to each solicitor and one additional copy to us for filing at court.

We look forward to hearing from you.

Yours faithfully

A FIRM LLP Law & Co

Dated:

178 Guides to Good Practice Appendix E

Example: Joint letter of instruction to report on pension sharing or earmarking

Mr D Jones

Jones Pension Consultants

1 High Street

Uptown

UP1 3YH

Dear Sir

Pension Report for the Purposes of Family Proceedings

Mr and Mrs Jones

This letter is written on the joint instruction of Mr and Mrs Jones, who are involved in divorce and associated financial proceedings in the Uptown County Court.

Mr Jones is represented by Mr White of A Firm LLP and Mrs Jones is represented by Ms Green of Law & Co Solicitors of 65 New Street, Uptown, UP1 3KT (Ref: SG).

[It has been agreed]/[An order has been made by District Judge Smith in the Uptown County Court on [ ] that a report should be prepared by a single joint expert about [Mr Jones’][Mrs Jones’][the parties’] pension provision and pension sharing [or attachment orders]. [A copy of the order is enclosed.]

The purpose of this letter is to set out your formal instructions to act as the Single Joint Expert in this matter.

Background

Mr Jones’ date of birth is [ ] and he is a [occupation]. Mrs Jones’ date of birth is [ ] and she works as a [occupation].

Both parties are in good health and neither party is a smoker.

The parties’ respective pension assets are summarised in the table below:

Guides to Good Practice 179 Pensions [Details of Scheme/Policy] Mr Jones (CETV) Mrs Jones (CETV)

XYZ Insurance Plc £156,345

DEF Limited £78,639

ABC Retirement Benefit Scheme £32,987

Total Pension CETVs £234,984 £32,987

We enclose the following documentary evidence:

[This list is not exhaustive. The expert may have their own list of information that needs to be provided at the outset, but provision of the following information should be considered.]

• Paragraph 2.13 from each parties’ Form E and supporting documents, including evidence of CETVs

• Form P for each policy and the response from the pension provider/trustee

• State Pension forecasts for each party

We anticipate that you will need to obtain additional information and letters of authority from both parties to enable you to obtain that information directly from the pension providers are also enclosed.

Nature of instructions

[Consider carefully what the expert is being asked to report on. This list is intended to cover common requests, but is not exhaustive.]

You are therefore instructed, as a single joint expert, to provide a report advising on:

• the pension sharing order or orders that would achieve equalisation of pension benefits in retirement, both in respect of income and lump sum, based on the current CETVs of the parties’ pensions; and/or

• the pension sharing order or orders that would be required to achieve equalisation of CETVs, based on the current CETVs of the parties’ respective pensions; and/or

• [consider whether the report should include evidence on attachment orders]

It should be assumed for the purposes of your report that:

180 Guides to Good Practice [These are just examples of assumptions that may be relevant. Again, it is important that the purpose of the report, and therefore the basis on which is being requested, is considered carefully in each case.]

• Mr Jones will retire at age [ ] and Mrs Jones will retire at age [ ].

• State Pension will be taken into account (for the purposes of 2(a) above);

• Pensions should increase in payment at equivalent rates.

• There will be no income from other sources (so that income tax treatment will be equal).

As you will be aware, the instruction of experts in family proceedings is set out in Part 25 of the Family Procedure Rules (‘FPR’). Please note in particular Part 25.10, which sets out details of the contents of an expert’s report and the statement required at the end of your report under Part 25.10 (2).

We are attaching a copy of Part 25 FPR and of the Practice Direction to FPR Part 25, known as PD25A.

Timing

[The court has ordered] or [it has been agreed] that this report should be produced by no later than [ ].

Your fees

Guides to Good Practice 181 In the event that either party raises questions about your report, the party who raises those questions will be responsible for your costs of answering the questions and a separate invoice should be raised for that purpose [or alternative details as agreed or ordered].]

Please also indicate what your fees will be for attendance at a hearing, in the unlikely event that this is required.

Law & Co Solicitors have confirmed their agreement to these instructions by countersigning this letter/ writing to you direct.

Could you please send one copy of your report to each solicitor and one additional copy to us for filing at court.

We look forward to hearing from you.

Yours faithfully

A FIRM LLP Law & Co

Dated:

182 Guides to Good Practice Guide to Good Practice on Instructing Experts in Proceedings Involving Children

1. Introduction

The object of all dispute resolution is to clarify facts and narrow issues. The use of experts may be considered in children-related situations, including proceedings. Those involved in assisting parties, including the court, may be helped by an expert’s findings in relation to injuries or medical complaints, psychological problems including attachments, or even how children have reacted in a supervised contact centre. Whilst the court strictly controls the use of all experts in proceedings involving children – and so much so that many protocols and practice directions have come and gone over the years in an attempt to control their use in this area of law – this is not the case in other forms of dispute resolution (but see section 5 below).

The instruction of experts in family proceedings is governed by Part 25 of the Family Procedure Rules 2010 (FPR) and supplemented by the Practice Direction 25A (PD), both of which apply to proceedings issued on or after 6 April 2011. It should, however, be noted that the court has the power to direct that the FPR applies to cases pre-dating 6 April 2011, and we anticipate that judges will be considering all cases in light of the FPR.

The Practice Direction can be found at annex 12B and its suggested letter templates can be found at the end of this guide (annex 13A and 13B). The Practice Direction and Part 25 of the FPR (annex 12A) should be read in conjunction with this guide, as the PD gives an overall account of the use of experts in all proceedings involving children. This guide intends to illustrate the main issues for consideration before any expert is instructed.

If instructing an expert outside court proceedings, be clear a) whether the report is to be available to the court if proceedings take place and b) whether solicitors or other practitioners (eg mediators) will instruct the expert.

2. The court’s role

Rule 25.1 imposes a duty to ‘restrict expert evidence to that which is reasonably required to resolve the proceedings’. Furthermore, r25.4 makes it absolutely clear that no expert evidence may be called without the court’s permission. Therefore, you must be prepared to give a reasoned argument as to why the expert you propose is required and how the judge will be assisted with that expert evidence, and provide supporting documentation, which is referred to below.

3. Finding an expert

Your firm should have its own directory of experts, which should be consulted in the initial stages to ascertain who is the most appropriate expert to instruct. If no suitable expert is identified then consider

Guides to Good Practice 183 approaching another Resolution member who may have experience in appointing the type of expert you wish to use. In the alternative the Law Society library service will be able to assist and if necessary it will be able to connect you to its own online expert witness service.

It is important to check qualifications, relevant experience and post-qualification training. Check whether the expert has given evidence as a witness in court before, and if so how often. This information should be set out in their CV, which you should consider before circulating their details to the other parties.

The following contacts may be of assistance:

• Expert search – www.expertsearch.co.uk

• Expert witness directory – part of www.legalhub.co.uk

• Royal College of Psychiatrists – www.rcpsych.ac.uk

• Royal College of Paediatrics and Child Health – www.rcpch.ac.uk

• Association of Educational Psychologists – www.aep.org.uk

• Independent Social Workers – www.nagalro.org.uk

Recent reports indicate that most experts are ‘professional’ experts and do not have their own practice, do not do CPD, and do not do supervision. Check these issues before instructing.

3.1 Testing for drug and alcohol use

There are several well known accredited companies that can provide hair strand testing in order to ascertain drug and alcohol use. In addition to testing of hair samples for alcohol use (ETG test) they can also carry out a liver function test (LFT) and a carbohydrate deficient transferring test (CDT) which are both blood tests. An LFT covers a time period of approximately four to eight weeks and CDT looks at a period of approximately two weeks. Combined with the parent’s GP’s knowledge and/or a clinical assessment from a psychiatrist specialising in addictions, a full picture of that parent’s alcohol/drug use can be obtained. You should be aware of the recent judgment in London Borough of Richmond-upon- Thames v B [2010] EWCA 2903 (Fam) as to the use of hair strand testing for alcohol in Children Act proceedings. The judgment sets out in detail the forms of hair strand testing currently available and is also of note as it provides a clear reminder to experts who produce reports within Children Act proceedings of their duties as experts.

3.2 Testing for DNA profiling to ascertain paternity of a child

There are a number of internet sites that offer to provide DNA profiling to ascertain paternity of a child. It is important that whichever company is instructed has been accredited by the court as being a bona fide organisation. The profiling is nowadays undertaken by a simple mouth swab test with those swabs being collected through an accredited collection service – this can sometimes be through the child’s and the parent’s own GP with the swabs then being returned to the appointed organisation for the results to be obtained. It is important to ensure, if you are directed to coordinate the testing, that the appropriate permission for testing the child have been obtained, or it has been ordered, and that you leave the court hearing with all the relevant contact details for the relevant parties to be able to quickly

184 Guides to Good Practice facilitate the testing. In public law proceedings where the child is placed with foster carers, you will need their contact details (ss20 and 21 of the Family Law Reform Act 1969).

4. Instructing experts

4.1 Initial enquiries

It is essential to consider the requirements of Part 25 of the FPR 2010 and PD25A before instructing an expert. Not to do so may give rise to a contravention of the law of contempt of court or the various statutory provisions protecting confidentiality. A few examples taken from the PD are set out below. However, it is also worth pointing out here that experts’ costs may be prohibitive and their use will often cause a delay in the proceedings. Permission should always be obtained from the private paying client.

So far as public funding is concerned, it is essential to consult the current guidance from the Legal Services Commission. In a public funding case, if there is an element of therapeutic work carried out by the expert then you must ensure that the court order reflects that any therapeutic element is to be paid by the local authority and not by any of the publicly funded parties, as the LSC will not fund therapeutic work. So far as apportioning the cost of the assessment is concerned, ensure that the court order reflects that the court has considered the proportions in which it should be paid, has heard argument, and that it is recorded that it is an appropriate disbursement for public funding purposes.

Expert reports are disbursements and if designed to assist the process of mediation may be properly claimed from the LSC.

It is essential to carefully consider the expert’s terms and conditions and fully understand your personal liabililty to the expert. This is of particular relevance when the fees may be payable by the LSC, which may disallow all or part of the fee.

A full explanation should always be provided to clients, the court and the commissioner as to why an expert is required and what assistance that expert can bring to the court and the proceedings.

Relevant information to be obtained from/about potential experts

This information must be obtained in relation to an expert that you are proposing. You must comply with the guidance at paragraphs 4.1 and 4.2 PD25A, and your preliminary enquiries should enable you to obtain the following information:

• that there is no conflicted interest in instructing this expert;

• that the work required is within their expertise;

• that the relevant work can be undertaken within your timescales; and

• the expert’s availability to give evidence.

Before the court will grant permission it will be necessary to make preliminary enquiries of any intended expert to ascertain their qualifications and area of expertise (para 1.7 PD25A). The most effective way of doing this will usually be by requesting a copy of the expert’s CV. It is permissible to send the expert in

Guides to Good Practice 185 advance a brief but anonymised outline of the case and of the issues involved. The court will also need to know why such an expert is required and what assistance that expert can bring to the court.

Once proceedings have commenced, the court’s permission is always required to instruct an expert, to disclose information to an expert, or to release documents to an expert. Additionally, without the court’s permission no child may be medically or psychiatrically examined or assessed for the purpose of preparing expert evidence for the use in proceedings (para 1.5 PD25A). If an expert is required to observe a child having contact with a parent or other person then a specific direction will be required.

It would be helpful to obtain information from a couple of other experts for comparison, especially as to time frames for the preparation of their reports and their likely costs. This will assist the court in its decision making. This information is also likely to be required by both the LSC and a privately funded client before any appointment is made.

Such preliminary enquiries do not require the court’s permission and are unlikely to amount to contempt of court so long as the information is anonymised (para 1.7 PD25A).

5. Pre-application instructions of experts

This situation is governed by para 2.3 of the Practice Direction but it is worth pointing out here that any expert evidence obtained pre-proceedings is unlikely to be adduced without the court’s permission. This applies to expert evidence obtained in the course of mediation/collaboration. Since the expert’s report may become a court report, the letter of instruction should comply with section 7 below.

The PD also provides guidance for appointments of experts if an urgent need arises (para 2.4 PD25A).

6. Duties of experts

The overriding duty of any expert is to the court and not to the instructing or paying party. This and other duties are as set out in section 3 PD25A and thus not repeated here. Any letter of instruction to an expert should attach a copy of these duties so the expert is clear as to their responsibilities, or alternatively the web link can be inserted in the letter.

7. Letters of instruction

The Practice Direction annexes to it examples of questions to put to an expert and draft letters of instruction. It is recommended that these templates be used, but only as a guide. Practice Direction 25A explains that the letters must be tailored to the specific case. It is good practice to have draft questions prepared ready to be discussed with, and hopefully agreed by, the other parties. Listed below are some examples of what should also be inserted into any letter of instruction, which may also help.

• Brief context and background information.

• Specific questions.

• List of documents provided within paginated bundle.

186 Guides to Good Practice • Include in the bundle a copy of any order and directing instruction, agreed list of essential reading and a copy of PD25A.

• Identify documents that are not original records.

• Identify requests for disclosure and responses or lack of.

• Identify relevant people and whether the expert has authority to contact them.

• Identify any other experts instructed and, if appropriate, authority to contact them.

• Identify a retainer, including hourly rate, who will pay and when they will pay, including any legal funding qualifications on payment.

8. Time scales (court proceedings)

Time scale Action

By 11am business day before hearing File written proposals as to why expert of directions involvement sought and draft order

Within 5 business days after hearing Agree and send letter of instruction to expert

Within 10 business days after report filed Raise any further questions in writing to clarify the content of report

Within 15 business days of filing report Lead solicitor to arrange any necessary meeting of experts

5 business days prior to experts meeting A meeting agenda should be agreed between parties

2 business days prior to any experts An agreed agenda of the meeting is to meetings be sent to experts

Within 5 business days after experts Parties to file statement of agreement/ meeting disagreement

Within 10 business days after meeting Any party not agreeing to be bound by an agreement reached at the meeting must notify the court in writing

10 business days after any final hearing Lead solicitor to inform experts in writing, of the outcome and use made of their opinion, forwarding transcript if applicable

Guides to Good Practice 187 Appendix A

Suggested questions in letters of instruction to child mental health professional or paediatrician in Children Act 1989 proceedings – an annex to PD25A drafted by the Family Justice Council.

A. The Child(ren)

1. Please describe the child(ren)’s current health, development and functioning (according to your area of expertise), and identify the nature of any significant changes which have occurred

• Behavioural

• Emotional

• Attachment organisation

• Social/peer/sibling relationships

• Cognitive/educational

• Physical

o Growth, eating, sleep

o Non-organic physical problems (including wetting and soiling)

o Injuries

o Paediatric conditions

2. Please comment on the likely explanation for/aetiology of the child(ren)’s problems/difficulties/ injuries

• History/experiences (including intrauterine influences, and abuse and neglect)

• Genetic/innate/developmental difficulties

• Paediatric/psychiatric disorders

3. Please provide a prognosis and risk if difficulties not addressed above.

4. Please describe the child(ren)’s needs in the light of the above:

• Nature of care-giving

• Education

• Treatment

188 Guides to Good Practice B. The parents/primary carers

5. Please describe the factors and mechanisms which would explain the parents’ (or primary carers) harmful or neglectful interactions with the child(ren) (if relevant).

6. What interventions have been tried and what has been the result?

7. Please assess the ability of the parents or primary carers to fulfil the child(ren)’s identified needs now.

8. What other assessments of the parents or primary carers are indicated?

• Adult mental health assessment

• Forensic risk assessment

• Physical assessment

• Cognitive assessment

9. What, if anything, is needed to assist the parents or primary carers now, within the child(ren)’s time scales and what is the prognosis for change?

• Parenting work

• Support

• Treatment/therapy

C. Alternatives

10. Please consider the alternative possibilities for the fulfilment of the child(ren)’s needs

• What sort of placement

• Contact arrangements

11. Please consider the advantages, disadvantages and implications of each for the child(ren).

Guides to Good Practice 189 Appendix B

Suggested questions in letters of instruction to adult psychiatrists and applied psychologists in Children Act 1989 proceedings – an annex to PD25A drafted by the Family Justice Council.

1. Does the parent/adult have – whether in his/her history or presentation – a mental illness/ disorder (including substance abuse) or other psychological/emotional difficulty and, if so, what is the diagnosis?

2. How do any/all of the above (and their current treatment if applicable) affect his/her functioning, including interpersonal relationships?

3. If the answer to Q1 is yes, are there any features of either the mental illness or psychological/ emotional difficulty or personality disorder which could be associated with risk to others, based on the available evidence base (whether published studies or evidence from clinical experience)?

4. What are the experiences/antecedents/aetiology which would explain his/her difficulties, if any (taking into account any available evidence base or other clinical experience)?

5. What treatment is indicated, what is its nature and the likely duration?

6. What is his/her capacity to engage in/partake of the treatment/therapy?

7. Are you able to indicate the prognosis for, time scales for achieving, and likely durability of, change?

8. What other factors might indicate positive change?

(It is assumed that this opinion will be based on collateral information as well as interviewing the adult).

190 Guides to Good Practice Guide to Good Practice on Disclosure in Financial Order Applications

1. Introduction

The current procedure for applying for financial orders, as they are now called, in accordance with the Family Procedure Rules 2010 (FPR 2010) as amended, is designed to encourage openness and prevent delay. At the heart of the process is a framework to ensure that disclosure is given in an orderly, standardised format with strict timetabling fixed by the court. The emphasis is upon identifying issues at an early stage and upon the court regulating the extent of disclosure so that it is proportionate to the issues in question and the amount at stake.

The duty of disclosure must be considered in accordance with the law, judicial recommended practice, the Solicitors Regulation Authority’s outcome-focused Code of Conduct 2011, the Law Society’s Family Law Protocol, and of course the Resolution Code of Practice.

This guide includes a summary of the law as well as recommendations for good practice, and is intended to assist you in providing your professional advice. It is not, of course, a definitive exposition of the legal position and is not a substitute for that advice. This area of law is constantly developing, and it is essential that you are up to date with developments in order to provide the best possible advice. The FPR 2010 contains a whole new set of rules codifying and modernising the procedural rules that have governed family proceedings, in some respects for many decades, and it is still too early to assess the full impact of these new rules. The Family Justice Review and the resulting ‘Modernisation of Family Justice’ programme currently being implemented by Mr Justice Ryder is provisionally expected to be in place in 2013, with the single civil and family courts being introduced in July 2013 and the proposed new Children and Families bill to be enacted and implemented by April 2014.

2. The duty to disclose

Disclosure relates to both facts and documents. A party discloses a document by stating that the document exists or has existed, and inspection of a document occurs when a party is permitted to inspect a document disclosed by another person (see r21.1 FPR 2010 ). For the purposes of disclosure and inspection, ‘document’ means anything in which information of any description is recorded; and ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

2.1 Financial orders on divorce

Both the parties and their legal representatives owe a duty to the court to give full and frank disclosure in financial order applications and also in all matters in respect of children – a principle that has been established for many years, and was clearly set out in Practice Direction: Case Management 31 January 1995 [1995] 1 All ER 586. In this context, the term disclosure usually means disclosure and inspection (see also Livesey v Jenkins [1985] 1 All ER 106). Anything less may render it impossible for the court to

Guides to Good Practice 191 carry out its balancing exercise as required under s25 of the Matrimonial Causes Act 1973, perhaps invalidating any order made.

Rule 1.1 of Part 1 of the FPR 2010 contains the slightly revised overriding objective of ‘enabling the court to deal with cases justly, having regard to any welfare issues involved’. It then explains that dealing with a case justly includes, as far as is practicable;

• ensuring that it is dealt with expeditiously and fairly;

• dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

• ensuring that the parties are on an equal footing;

• saving expense; and

• allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Rule 1.3 requires the parties ‘to help the court to further the overriding objective’, and r1.4 sets out the court’s duty to manage cases, with examples of how that is to be done.

The FPR 2010 (as amended by the Family Proceedure (Amendment) Rules 2012) contain further rules relating to disclosure in financial order applications, for example, r5.2 which states that ‘subject to any rule or practice direction, unless the court directs otherwise, a form must have attached to it any documents which, in the form, are (a) stated to be required; or (b) referred to’, and r9.14(2), which provides for the exchange of financial statements. These must be:

‘(a) verified by a statement of truth; and (b) accompanied by the following documents only:

• any documents required by the financial statement;

• any other documents necessary to explain or clarify any of the information contained in the financial statement;

• any documents provided to the party producing the financial statement by a person responsible for a pension arrangement, either following a request under r9.30 or as part of a relevant valuation; and

• any notification or other document referred to in r9.37(2), (4) or (5) which has been received by the party producing the financial statement.’

Rule 9.14(3) deals with the situation where documents are not yet available and r9.14(4) deals with restrictions on disclosure prior to first appointment. Statements of truth are now required on documents such as forms E (from 6 April 2012) and replies to questionnaires, and proceedings for contempt of court may be brought against the person who makes, or causes to be made, a false statement in a document verified by a statement of truth without having an honest belief in its truth (r17.6 FPR 2010 and PD17A, para 6).

Until the coming into force of the FPR 2010 , the President’s Direction on Ancillary Relief Procedure of 25 May 2000 ([2000] 1 FLR 1997) and the attached pre-application protocol dealt with the parties’

192 Guides to Good Practice disclosure obligations in the context of pre-application disclosure. The Family Law Protocol repeated these obligations in the context of post application disclosure. Practice Direction 9A to Part 9 of the FPR 2010 now addresses the issue of financial disclosure in the context of all financial order applications, although with specific reference to various rules, and has annexed to it a pre-application protocol, which refers to this guide. The protocol underlines the obligation of parties to make full and frank disclosure of all material facts, documents and other information relevant to the issues, and reminds practitioners that solicitors owe their clients a duty to tell them in clear terms of this duty and of the possible consequences of breach of the duty, which may include criminal sanctions under the Fraud Act 2006. The duty of disclosure is an ongoing obligation and includes the duty to disclose any material changes after initial disclosure has been given. Paragraph 3.4 of PD9A states that ‘any breach of this practice direction or the pre-application protocol annexed to it will be taken into account by the court when deciding whether to depart from the general rule as to costs’, and so should be borne in mind. Time will tell whether any more costs orders are made in this context.

The duty of full and frank disclosure includes:

‘… a duty to provide information that would set the other side on a line of enquiry, or a thought process, on matters to which the court must have regard under s25 MCA 1973… it includes a duty to inform the other side of information that may (a) result in the removal of uncertainty as to the value of assets, or the amount of a party’s future income, or (b) inform the assessment of the income or earning capacity of a party to the marriage or the value of his or her assets’ (Charles J in I v I [2008] EWHC 1167 (Fam)).

Negotiations relating to the sale of a property or shares whose value is relevant, or to existing or new employment that would have an impact on income, should generally be disclosed (paras 114 and 115PD25A). It would also be prudent for estimates of discretionary bonuses or awards to be given (para 126). If there is any doubt about the effect of the information, disclosure should be given (para 116). Charles J did not allow the wife’s application to set aside the consent order where the husband had failed to disclose advanced negotiations in respect of new employment at a significantly higher income in that case. This decision was overturned by consent on appeal, and unusually the Court of Appeal gave a brief judgment anyway so as to make clear its preliminary conclusion that it would have allowed the appeal (see Bokar-Ingram v Bokar-Ingram [2009] EWCA Civ 412). Charles J’s comments may still though be useful – since the Court of Appeal actually went further in its decision than Charles J did.

See also GW v RW [2003] 2 FLR 108 (and W v W (Ancillary relief: Non-disclosure) [2003] EWHC 2254 (Fam)) in relation to the requirement for ‘an honest and conscientious estimation of the true net worth of the party’ and the duty to ‘give a presentation that is immediately understandable by a solicitor of average financial sophistication’ in form E. GW v RW has since been over-ruled in Jones v Jones [2011] EWCA Civ 41 in respect of the approach to be taken to quantifying a spouse’s earning capacity, but these comments were not discredited at appeal.

2.2 Generally in civil proceedings As Donaldson MR said in Naylor v Preston Area Health Authority [1987] 2 All ER 353: ‘Nowadays the general rule is that, whilst a party is entitled to privacy in seeking out the cards for his hand, once he has put his hand together, the litigation is to be conducted with all the cards face up on the table. Furthermore, most of the cards have to be put down well before the hearing’ (at 360).

Since Naylor, opinion seems to have hardened and it is now only in the rarest of cases that a court will sanction departures from the ‘cards on the table’ approach (see McGuiness v Kellogg Co of Great Britain

Guides to Good Practice 193 Ltd [1988] 1 WLR 913 and Khan v Armaguard Ltd [1994] 1 WLR 1204). This position is supported by the Civil Procedure Rules 1998.

As an officer of the court, a solicitor has a duty not knowingly to allow a client to mislead the court by providing incorrect or inaccurate information. An imputed knowledge of facts could be attributed to a lawyer, for example if information about a client’s financial circumstances is known by the firm even if within a different department and in a capacity other than the matrimonial proceedings. Conflict of interest searches must always be carried out within the firm and proper consideration given to whether the firm can continue to represent that client in the matrimonial proceedings. See also the SRA’s Solicitors’ Code of Conduct – chapter 4 covers confidentiality and disclosure. Outcome 4.4 sets out when you may act even when material confidential information is held by another member of the firm, and outcome 4.5 requires effective systems and controls to be in place. The duty of confidentiality must be reconciled with the duty of disclosure, and where that is not possible, the protection of confidential information is paramount.

2.3 Judicial involvement There has been an increasing trend over recent years for greater judicial involvement in the management of family law cases, including the disclosure process.

In F v F (Ancillary relief: Substantial assets) [1995] 2 FLR 45 at 70A Thorpe J (as he then was) said that ‘ancillary relief applications in the Family Division are not purely adversarial. The court has an independent duty to discharge the function imposed by statute. The court has from that duty the power to investigate and the power to ensure compliance with the duty of full and frank disclosure owed by litigants.’

In OS v DS (Oral disclosure: Preliminary hearing) [2004] EWHC 2376 Coleridge J gave directions for a preliminary/oral discovery hearing to enable the husband to give evidence on oath about a number of central financial issues before requiring the disclosure or production of further documents. The hearing resulted in the case settling after the husband had been cross-examined.

In K v K (Financial capital relief and the management of difficult cases) [2005] 2 FLR 1137 at para 22 Baron J said ‘in my view, this type of case should be managed by an allocated High Court judge from the outset. These cases are demanding and obtaining disclosure is often pivotal.’ This has been extended by the financial orders process, which promises ‘active case management’ by the court, and which is given even more focus by the new FPR 2010 (r1.4 and Part 4).

Good practice Disclosure is of such vital importance to the court in order to produce a just outcome that in giving disclosure, parties and their legal advisers should err on the side of too much rather than too little.

The Resolution Code of Practice requires members to emphasise to clients the importance of being open and honest in all dealings. The Family Law Protocol requires lawyers to avoid mistrust between the parties by encouraging at an early stage full, frank and clear disclosure of information and openness in dealings. At the first client meeting, or very soon thereafter, or if appropriate before the first client meeting, the lawyer should consider whether, as a matter of good practice, to provide a client with a blank form E to complete.

If parties carry out voluntary disclosure before the issue of proceedings they should exchange schedules of assets, income, liabilities and other material facts, using the financial statement as a guide to the

194 Guides to Good Practice format of the disclosure. Documents should only be disclosed to the extent that they are required by the financial statement. Excessive or disproportionate costs should not be incurred (see the pre- application protocol annexed to para 11 PD9A).

Although certain information must be given, eg in accordance with s25(2) MCA/FPR (as regulated in form E), the duty to disclose extends to any fact within a party’s knowledge that might materially affect the exercise of the court’s discretion or powers. However, close regard must be had to the concepts of ‘proportionality’ and ‘saving expense’ (r1.1 FPR 2010).

Consideration should be given to trying to obtain judicial assistance with active case management in an appropriate case, particularly in light of the increased emphasis on this within the new FPR 2010 , whilst recognising that although desirable this is often not practical due to lack of court resources. Part 4 of the FPR 2010 contains a non-exhaustive list of possible general case management techniques that may be employed.

3. The importance that the court attaches to the duty of disclosure in financial cases

The courts regard failure to disclose as a reprehensible act. It may be regarded as ‘conduct’ and may give rise to an inference of greater assets. It may also result in costs orders against a party, possibly against a legal representative, and sometimes on an indemnity basis. Alternatively, costs orders may be limited to the additional costs incurred as a result of the failure to provide full disclosure, and on a standard basis, and not used as a means of punishment (Peter Hughes QC in M v M [2006] WL 2049700). Failure to disclose will almost certainly result in a loss of credibility for the non-disclosing party, and very often results in a case settling part way through a final hearing in a way beneficial to the other party, albeit with often huge and wasteful expenditure on legal fees. It may also impact on future issues, as it did on appeal in M v M [2006] EWCA Civ 1852 (second appeal following Peter Hughes QC’s judgment referred to above), where Wall LJ (as he then was) said ‘In my judgement, the wife is entitled to choose the option [for sale of a property] in which she has the greater confidence. It is at this point that the husband’s litigation conduct returns to haunt him. Had he behaved properly during the proceedings, had he given full, frank and clear disclosure, had he not breached his undertakings and dissipated funds, I do not think we would be where we are or that we would be having the current argument.’

The general rule on costs in applications for financial orders has been, since the Family Proceedings (Amendment) Rules 2006, that the court will not make an order requiring one party to pay the costs of another party, but may do so if appropriate because of the conduct of the party in relation to the proceedings (whether before or during them). This rule is now encapsulated in r28(5) FPR 2010: the court will not make an order for costs against a party in proceedings for a financial order except an order for maintenance pending suit/an order pending outcome of proceedings, an interim periodical payments order or any interim order related to financial order applications (variation applications are covered by PD28A). But the court may make a costs order at any stage of the proceedings where it considers it appropriate as a result of the conduct of a party in relation to the proceedings, whether before or during them (r28.3(6)) – ie litigation misconduct. The considerations which r28.3(7) require the court to take into account when deciding whether to make a costs order in this context include any failure by a party to comply with the rules, any order of the court or any practice direction that the court considers relevant; the manner in which a party has pursued or responded to the application or a particular allegation or issue; and any other aspect of a party’s conduct in relation to proceedings that the court considers relevant.

Guides to Good Practice 195 On the issue of conduct and its practical effect, Wilson J (as he then was) said in T v T [1994] 2 FLR 1083:

‘I appreciate that it has been held that a spouse’s behaviour in the ancillary litigation, specifically a dishonest failure to make full disclosure amounts to [relevant s25(2)] conduct: Desai v Desai (1983) 13 Fam Law 46 [[1994] 1 FCR 293] and B v B [1988] 2 FLR 490. But I agree with Thorpe J in P v P [1994] 1 FLR 293 at p 306A–C that a dishonest disclosure will more appropriately be reflected in the inference that the resources are larger than have been disclosed, in which case it will fall within s25(2)(a) and/or in the order for costs.’

This approach was taken in E v E [1990] 2 FLR 233 where a husband’s failure to disclose information about Swiss bank accounts and land necessitated an expensive and rigorous investigation into his affairs. He was ordered to pay the costs of both sides for the investigation. Ewbank J also held that the husband’s failure to disclose justified any inferences which were proper to be drawn against him. Where there has been a long period of time between the date of separation and the application for financial orders, it would seem that the duty to disclose financial developments may not be quite as vigorous (see Gordon (formerly Stefanou) v Stefanou [2010] EWCA Civ 1601). In addition, where the order is vitiated by non-disclosure, the court may, where appropriate, make additional or different provision without setting aside the whole order and there being a new hearing (Kingdon v Kingdon [2010] EWCA Civ 1251). See also Al Khatib v Masry [2002] 2 FCR 539 and TL v ML & ors (Ancillary relief: Claim against assets of extended family) [2006] 1 FCR 465, where adverse inferences were drawn.

There is a great deal of jurisprudence in respect of costs in family and civil proceedings. It is difficult to predict the outcome of costs issues, even in cases where there has been a lack of, or late disclosure, and the issue of the proportionality of pursuing the issue must always be borne in mind.

Good practice It is essential to inform clients of their obligation to give full disclosure and explain the potential severity of the court’s approach to non- or misleading disclosure. It would be advisable to do this both at the outset (perhaps in the terms of engagement letter) and at each relevant stage during the retainer. The parties are required to help the court.

Litigation misconduct is now the only basis on which an adverse costs order may be made in proceedings for financial orders, which undoubtedly may include a failure to provide adequate disclosure. The practical effects of this on a day-to-day basis are difficult to assess. The costs implications of non-compliance with the duty to disclose should be considered by the court at the first appointment and throughout the proceedings. Clients must be advised of the risks – both of the possibility of an order being made, but also the reality that it is often very difficult to secure a costs order.

4. The mechanics of disclosure

4.1 Before an application for financial orders

The pre-application protocol annexed to PD9A governs the steps parties should take to seek and provide information from, and to, each other prior to the commencement of an application for financial orders. Paragraph 12 states that ‘If parties carry out voluntary disclosure before the issue of proceedings the parties should exchange schedules of assets, income, liabilities and other material facts, using the financial statement as a guide to the format of the disclosure. Documents should only

196 Guides to Good Practice be disclosed to the extent that they are required by the financial statement. Excessive or disproportionate costs should not be incurred.’

The emphasis in the FPR 2010 is very much on promoting DR methods (see Part 3) in the hope and expectation that these methods of dispute resolution will become mainstream. Of course it is now necessary for most applicants for financial orders to attend a mediation information and assessment meeting (MIAM) prior to the issue of an application in accordance with PD3A. Then, in the event that the court process is engaged, the rules are aimed at cases proceeding expeditiously, assisted by active case management, although the possibility of adjourning for further attempts at DR is also encouraged (see r3.3 FPR 2010 ). This would appear to indicate a shift from a position where pre-application disclosure was actively encouraged by the current pre-application protocol’s predecessor – presumably because of the added emphasis on DR. At present, anecdotally there is not a consistent approach by the courts to the promotion of DR nationwide. Adverse costs consequences in civil proceedings where there has been an unreasonable refusal to engage in mediation are now well established (following the principle set out in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576). It is likely that this approach will have a significant impact in family proceedings too over time.

For those who are doubtful about the likelihood of success of mediation, particularly in difficult cases, reference should be made to Al-Khatib v Masry & ors [2004] EWCA Civ 1353, [2004] 3 FCR 573. The first instance decision in this case is referred to above in the context of adverse inferences being drawn following inadequate disclosure. One could speculate that that would have been a pyrrhic victory without the success of the subsequent successful mediation following the appeal to the Court of Appeal.

The guidance notes to the pre-application protocol annexed to PD9A at paragraph 2 remind practitioners that:

‘In considering the options of pre-application disclosure and negotiation, solicitors should bear in mind the advantage of having a court timetable and court-managed process. There is sometimes an advantage in preparing disclosure before proceedings are commenced. However, solicitors should bear in mind the objective of controlling costs and in particular the costs of discovery and that the option of pre-application disclosure and negotiation has risks of excessive and uncontrolled expenditure and delay. This option should only be encouraged where both parties agree to follow this route and disclosure is not likely to be an issue or has been adequately dealt with in mediation or otherwise.’

Good practice DR methods should be considered at the outset and the client informed about the need to attend a MIAM before issuing an application for financial orders.

The pre-application protocol should be considered before proceedings are issued, and the advantages/ disadvantages of seeking voluntary disclosure weighed up, including the impact on costs.

Where the circumstances of the case are particularly complicated, more disclosure than that required by form E may be appropriate. It may be of assistance for this to be provided alongside the DR process by the parties’ solicitors.

In some circumstances it will be prudent to issue proceedings immediately, rather than pursue voluntary disclosure or engage in DR (for example where there may be a forum dispute). Practice Direction 3A provides that attendance at a MIAM is not necessary in certain situations, or alternatively part 4 on form FM1 may be completed by the solicitor acting for the applicant explaining why the applicant has not attended a MIAM. Part 4 should be used sparingly.

Guides to Good Practice 197 4.2 Financial order applications

Once proceedings for financial orders have been issued, the timing and extent of disclosure is regulated by the court in accordance with the FPR 2010 .

The procedure in the High Court and county courts prior to first appointment is set out in r9.14 FPR 2010 (see rr9.18 – 9.23 for the magistrates’ court procedure). Disclosure is initially restricted to completing the financial statement on form E five weeks prior to the first appointment. Two weeks before the first appointment the documents specified in r9.14 must be filed with the court and served on the other party, including a statement of concise issues and a questionnaire/request for information and documents that must be referable to the statement of issues.

The duties of the court at the first appointment are set out in r9.15. The district judge must determine the extent of the questions to be answered and decide what further documents are to be produced. After the first appointment neither party is entitled to the production of further documents except by permission of the court (r9.16). At any stage either party may apply for further directions (r9.16(2)). It may be appropriate to seek a direction for the filing of narrative affidavits (see W v W (Ancillary relief: Practice) [2000] Fam Law 473), or for other interim remedies such as an order for inspection or preservation of property. Interim remedies are set out in Part 20 FPR 2010 . Oral evidence may also be given at an interlocutory appointment (see OS v DS (Oral disclosure: Preliminary hearing) at 2.3 above).

One must always have regard to the ‘overriding objective’ of the procedure (see paragraph 2.1 above).

4.3 The timing of ongoing disclosure

There is an obligation to disclose developments on an ongoing basis, without being asked. Livesey v Jenkins decided that there was an obligation on the wife to disclose her engagement immediately. Reference is also made in PD9A.

The documents and information that must be disclosed during the proceedings are those which add materially to the overall picture, or alter disclosure already given, or are such as might reasonably affect the negotiating position or the exercise of the statutory discretion. The parties must disclose ‘facts, information and documents, which are material and sufficiently accurate to enable proper negotiations to take place to settle their differences’ (para 11 PD9A).

Failure to update disclosure could result in costs orders or adverse inferences being drawn.

After the proceedings are concluded, and where there is an enquiry made about a subsequent change of circumstances, there is probably an obligation to provide sufficient information to enable that enquiry to be evaluated, especially where there is a substantial joint lives periodical payments order (Den Heyer v Newby [2005] EWCA Civ 1311).

Good practice Clients should be reminded of their ongoing duty of disclosure at every relevant stage of the retainer and specifically advised to notify their lawyer of any material changes in their disclosure, as soon as practicable.

Early disclosure will usually reduce the possibility of mistrust, save costs and expedite consideration of terms of settlement.

198 Guides to Good Practice Clients should be advised that producing information at the last moment, including updating or varying disclosure may lead to an adjournment and/or a penalty of costs. Sanctions may also be imposed on their legal advisers in some circumstances.

5. Privilege and disclosure

5.1 The law of privilege

Privileged communications are generally protected from disclosure in evidence in any civil proceedings. The law of privilege is complex. Legal professional privilege (sometimes referred to as solicitor/own client privilege) covers first communications between the client and their legal advisers (legal advice privilege) and secondly any communications with a party and with third parties in the preparation and conduct of the case in the context of actual or contemplated litigation (litigation privilege). ‘Without prejudice’ privilege attaches in specifically defined instances to correspondence and discussions between the parties and their advisers regarding the compromise of any dispute. Fourthly, there exists in some circumstances privilege against self incrimination. Finally, the concept of a form of mediation privilege appears to be developing as potentially a separate category of privilege or confidentiality. Part 35 of the FPR 2010 and amendments to the Civil Procedure Rules 1998 came into force on 6 April 2011 to implement the EU Mediation Directive 2008/52/EC in respect of EU cross-border disputes in proceedings to which the rules apply. This area of law is likely to develop and should be kept under review, particularly by those involved in EU cross-border disputes. Quite different legal principles can apply to different forms of privilege.

The basic rule of evidence is that communications between parties to a dispute that are written or made with the aim of genuinely attempting to settle that dispute cannot usually be admitted in evidence, whether in the same or subsequent litigation connected with the subject-matter and irrespective of whether a settlement is reached or not (see Instance v Denny Bros. Printing Ltd (2000) The Times, February 28, Ch D and Rush & Tomkins v Greater London Council [1989] 1 AC 1280). However, any admission or statement of existing facts, or a statement of the strength of a party’s case, is not privileged and can be referred to at any hearing, even if marked ‘without prejudice’ (Buckinghamshire County Council v Moran [1990] CH 623 CA). So, simply marking a letter as ‘without prejudice’ or ‘without prejudice save as to costs’ does not protect factual disclosure from being treated as open; it is not possible to prevent the disclosure of documents that would otherwise be disclosable as a matter of law simply by marking them ‘without prejudice’ or referring to them in any negotiations (whether in mediation, at FDR, or as part of any other confidential dispute resolution process).

The law in relation to privilege against self-incrimination depends on the context of the disclosure, and has been clarified in the Court of Appeal decision in R v K [2010] 1 FLR 807, which involved a criminal prosecution in the context of tax evasion. The court drew a clear distinction between disclosure that is legally required as a matter of law and in relation to which a client is not entitled to invoke the privilege against self-incrimination (which includes disclosure compellable in proceedings for financial orders), and information that is volunteered without compulsion (in that case, in a without prejudice round table meeting), to which the privilege against self-incrimination did not attach. The court held that the FPR 2010 , which had the approval of Parliament, must have been intended to abrogate the privilege, since the court could not discharge the duty imposed on it by s25 Matrimonial Causes Act 1973 unless the parties were required to disclose all relevant information, even if tending to incriminate them. The purpose of the legislation would be frustrated if the parties could withhold from the court relevant information, whether relating to their financial affairs or other matters, on the grounds that to disclose

Guides to Good Practice 199 it would tend to incriminate. The court went on to say that the public interest in prosecuting crime outweighed the public interest in the settlement of disputes. Admissions made in the course of ‘without prejudice’ negotiations were not inadmissible in criminal proceedings simply by virtue of the circumstances in which they were made, but could in the exercise of discretion be excluded if their admission would make that criminal trial unfair.

In relation to admissions at the FDR, reference should be made to PD9A, which makes clear that such admissions may not be admissible in evidence except in the trial of a person committing an offence at the appointment or in the very exceptional circumstances indicated in Re D (Minors) (Conciliation: Disclosure of information) [1993] Fam 231. Further consideration of this complex issue is beyond the scope of this guide.

Good practice Facts should not be disclosed in ‘without prejudice’ correspondence. There should be an open letter containing the disclosed information and a separate letter making any privileged proposals. Please refer to the Guide to Good Practice on Correspondence.

Where factual information is given in another lawyer’s privileged letter that lawyer should be invited to repeat it in an open letter or be informed that otherwise the letter will be redacted (ie edited) to delete the privileged information so that it may be used in evidence. If necessary the issue will need to be adjudicated on at an interlocutory hearing or as a preliminary issue.

Where there is the suggestion that a client may have committed a criminal offence, they should be advised about the implications of divulging that information in different contexts in light of R v K [2010] above.

Great care must be exercised in using privilege correctly, since the issue of privilege and confidentiality is a complex and constantly changing one of law, procedure and ethics.

The opportunity to use privileged communications between parties to litigation should encourage attempts to settle and should be fully utilised by lawyers on behalf of clients. Paragraph 6.3 of PD9A states that the court expects parties to make offers and proposals and to give them proper consideration at the FDR appointment. There is a duty to negotiate, but it is necessary for there to have been proper disclosure before offers can be made (see Butler-Sloss LJ as she then was in Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233).

At the FDR appointment evidence of anything said or of any admission made in the course of an FDR appointment will not be admissible in evidence, except in the very exceptional circumstances indicated in Re D (Minors) (Conciliation: Disclosure of information [1993] Fam 231, sub nom Re D (Minors) (Conciliation: Privilege) [1993] 1 FLR 932 (para 3.2 President’s Direction of 25 May 2000). See also Myerson v Myerson [2008] EWCA Civ 1376, on the issue of whether the FDR judge can hear a subsequent variation application.

Solicitors must always advise their clients to ensure that full and frank disclosure is made, should advise of the consequences of any failure to do so both in terms of potential civil and criminal liability, and should confirm the position in writing.

Clients should be advised to keep their own documents in a safe place at all times, particularly if they continue to share a property with the other party.

Caution should be exercised when communicating with clients and other lawyers by email.

200 Guides to Good Practice It is good practice to consider the use of a separate correspondence address with a client, a password- protected email address or possibly the use of a post office box, to avoid the risk of information coming into the possession of the other party.

5.2 Fraud by failure to disclose information

The situation is complicated by the introduction of the criminal offence of fraud by failing to disclose information (s3 Fraud Act 2006). The offence is committed where there is a failure to comply with a legal duty to disclose, with the intention to make a gain or cause a loss, and the defendant realises that the failure is dishonest by the ordinary standards of reasonable and honest people. The privilege against self-incrimination is excluded by s13(1), but s13(2) makes any statement or admission by a person inadmissible in proceedings under the Fraud Act against them or their spouse or civil partner.

5.3 The misdirection of privileged communications and other privileged documents

The misdirection of privileged communications/documents can result in two different situations arising.

First the client may obtain privileged communications. Where a client tells a lawyer that they have obtained lawyer/client privileged communications, belonging to their spouse/the other client, the lawyer should tell the client that they do not want to know about the document or its contents and, further, tell the client not to read it, and to replace it, destroy it if it was only a copy, or send it to the lawyer to forward on unread. Acting in this way prevents the lawyer coming into conflict with the client.

Where a lawyer receives information or documents from their client and realises that what they have received is privileged, the lawyer should not read the information/document. It must be returned to the client. The lawyer must also tell the client that they must forward them directly to the other lawyer. The client should be advised to disclose that they have obtained, and have read, privileged documents.

A conflict between lawyer and client only arises if the lawyer reads privileged documents and the client does not read them, or does not know about their contents. It does not arise if the client reads privileged documents and the lawyer does not know the contents of those documents.

Secondly, privileged communications may be wrongly sent to the other lawyer. In this situation, the lawyer should not read the letter or document and is not required to disclose the existence of the document to the client (see indicative behaviour 4.4(d) of the Solicitors’ Code of Conduct). If a lawyer knows immediately that it was sent by mistake, they should stop reading.

If you, the lawyer, read a material part of the document/communication, realise that it was not meant for you but have to concede that the information already read could be very useful to your client, you are under a duty to discuss the implications with your client. You must tell the client that you have a duty to immediately notify the other side that you have received this document by mistake and explain to your client the likelihood of the other side obtaining an injunction concerning the document, the costs implications, and/or the case being more likely to go to court.

In Ablitt v Mills & Reeve (1995) The Times, 25 October, Blackburne J made an injunction restraining solicitors from continuing to act for a party in civil litigation where they mistakenly received privileged documents sent to them by the other side’s counsel’s clerk and which on direct client instructions they had read. The judge said it offended elementary notions of justice if one party, having knowingly taken

Guides to Good Practice 201 advantage of such a mistake, could nevertheless continue to have the services of advisers who now had an accurate view of the other side’s adviser’s views on the merits.

6. Disclosure and the Proceeds of Crime Act 2002 (POCA)

In certain circumstances, the lawyer will have a duty to disclose aspects of the client’s position to the SOCA and this duty can override the lawyer’s duty of confidentiality to the client. This is a complex area and guidance should be sought from the Solicitors Regulation Authority and from Resolution’s short good practice guide on this subject.

7. The legal limitations to self-help in obtaining disclosure

This section of the guide contains a summary of the main issues of which you as practitioners need to be aware and gives specific guidance on searching for documents and information. It is inevitably an overview. Resolution’s detailed book Privacy and Disclosure for Family Lawyers contains far more detail and practical guidance and is commended.

Most people in their personal, private family lives do not expect the legal system and legal wrongs (civil or criminal) to play a part. However, when family relationships break down, the legal system may need to become involved. The courts have to grapple with identifying when personal private behaviour crosses the threshold into the legal arena. Disclosure, being fundamentally about access to data (in all its forms), is one of the issues defining that threshold. Inevitably there is a grey area in which it is difficult to predict the impact of particular behaviour.

Consideration needs to be given to when the ability to access data in a private household becomes a civil wrong or criminal offence, how to establish when this transition will or has occurred, and consequently when and to what extent information that belongs to each individual becomes confidential to them, to the exclusion of their partner. It had been suggested in the past by some commentators that there has been, or will be, a shift from the focus on whether documents have been obtained by force (see T v T (Interception of documents) [1994] 2 FLR 1083) to a focus on whether one party had the implied or actual permission of the other to access the data. Alternatively, a previous edition of this guide envisaged that the approach might become one firmly based on the strict application of legal principle, so that self-help might only be legally permissible when a potential civil wrong or criminal act will not result.

The Court of Appeal decision in Tchenguiz & ors v Imerman [2010] EWCA Civ 908, [2010] 2 FLR 814 is considered in more detail from 7.1 below, but appears to adopt the latter approach, and provides detailed legal analysis of the relevant issues, and some clarity about the potential consequences of self- help. It has been described as a ‘cheat’s charter’ by some, and welcomed by others as upholding legal principles that were considered often to be ignored in family cases. Inevitably, in practice it has raised more questions than provided answers, as practitioners and the judiciary endeavour to apply it to the specific circumstances of other cases. The case was determined by Lord Neuberger MR, and Moses and Munby LJJ.

Imerman followed a decision of a differently constituted Court of Appeal (Ward, Sedley and Wilson LJJ) in a pre-emptive application for strike out in White v Withers LLP & Dearle [2009] EWCA Civ 112, [2010] 2 FLR 132, which arose from the actions of the wife in intercepting the husband’s post and taking and

202 Guides to Good Practice passing to her solicitors original and copy documents, including private family letters and correspondence. The husband claimed against the wife and the wife’s solicitors, seeking damages in respect of breach of confidence and privacy, misuse of private information and wrongful interference with property. He discontinued the claim as against the wife but continued to pursue her solicitors. The judge struck the action out at first instance, and it was reinstated by the Court of Appeal, although the claim for damages for breach of confidence and privacy was not pursued on appeal. The court found that a good cause of action had been sufficiently pleaded in respect of trespass to goods and conversion. There was a case potentially to be answered in relation to the allegation that the wife had informed the husband that she had been told to take the documents by her solicitors. The action ended in May 2011 with an out of court settlement, and a public apology by Withers to the effect that they had applied the law as they reasonably understood it to be at the time.

In L v L & H [2007] EWHC 140 (QBD) the husband applied successfully for delivery up of copies of the hard drive of his laptop obtained by a computer expert instructed by his wife. Tugendhat J found that the husband had established an arguable case that the laptop contained confidential information, including documents protected by legal professional privilege.

It would appear that there can be a difference in the interpretation of the law in this area between some non-Family Division judges, who are more inclined to an approach based on the strict interpretation of legal principle, and some Family Division judges with a more purposive approach. It seems likely that this difference may continue for some time, particularly as the law develops to embrace new technological changes, and the courts battle with how to deal with wealthy, obstructive litigants who will use every means possible to avoid providing financial support to their spouse, and sometimes also their children. This issue is of great practical difficulty in some high-profile cases, and the controversy in this area is reflected in the real ethical and legal difficulties faced by clients and lawyers when the prospect of self-help arises or has been used in obtaining disclosure. Justice cannot be done without a significant degree of disclosure. The court may not condemn self-help if it can be justified. There may be exceptional cases where it is the only route, or certainly by far the quickest/ cheapest route, to obtain satisfactory disclosure. Alternatively self-help may result in other civil or criminal proceedings.

The client must be advised about the current uncertainties in this area, and you as the lawyer must keep an eye on the developing jurisprudence in the area of confidentiality/privacy law (both under the Human Rights Act 1988 (HRA) and the law of confidence) and in the context of statutory authorities such as the Data Protection Act 1998 (DPA), Computer Misuse Act 1990 (CMA), the Regulation of Investigatory Powers Act 2000 (RIPA) and the Copyright Designs and Patents Act 1988 (CPDA). Statutes may impose civil or criminal sanctions for breach, and may also result in a possible action in tort for breach of statutory duty. Other actions in tort or for breach of contract may also be possible.

Knowledge of your local courts would appear to be extremely important. Anecdotally, different courts are approaching this issue in very different ways ranging from ‘business as usual; this doesn’t really apply to us’ to the strict application of the Court of Appeal’s decision and approach in Imerman.

Good practice Most importantly, and irrespective of the potential legal consequences, clients should be advised to consider the practical and procedural consequences of self-help, including that it may:

• have an adverse effect on their children, if they have any;

• raise tension and hostility between the parties;

Guides to Good Practice 203 • encourage vindictive and/or corresponding action by the other party;

• increase costs;

• result in an order for costs; and

• make settlement much less likely.

Pragmatism and common sense in this area are commended, but practitioners should be aware, and make their clients aware, of the potential risks of self-help solutions, especially in cases which are particularly contentious and likely to be litigious. Clients and practitioners should bear in mind that civil or criminal proceedings may follow as a result of self help.

In appropriate cases clients should be advised of the court’s powers to make search, preservation and freezing orders (and other interim orders) under Part 20 FPR 2010 . It is recognised though that, in practice, cases where such action is appropriate are likely to be far fewer than those in which there are real concerns about non-disclosure. The potential cost, and the risk of bringing such actions when the required evidence to justify it may not be readily available, or where the location and production of such evidence may bring with it the risk of criminal/civil proceedings, is undoubtedly a problem with no clear solution.

Be clear about your position, both personally and professionally, so that you do not potentially become liable in respect of a criminal or civil action. Retain your objectivity, professional judgement and a sense of proportionality. Self-help situations can be dramatic and can result in lawyers overlooking the complex issues of professional conduct and potential illegality that arise in this area. Keep up to date with developments in this area, since there is a great deal of uncertainty about how the decision in Imerman will be interpreted/developed in the future.

The issue of whether illegally or improperly obtained evidence will be admissible also needs to be considered. Such evidence is not automatically inadmissible (Jones v University of Warwick [2003] 1 WLR 954), and in family proceedings involves a discretionary exercise guided by the balance of the parties’ human rights and the overriding objective.

The use of private detective agencies cannot be recommended save in exceptional circumstances and with appropriate instructions being clearly given that information must be obtained lawfully, and that no unlawful action is to be taken. In R v Waters [2007] EWCA Crim 222 the applicant (for leave to appeal against sentence) had been convicted of conspiracy to cause unauthorised modification of computer material, and sentenced to four months’ imprisonment and ordered to pay £6,500 towards the prosecution’s costs. He employed a private detective agency to install spying software on his wife’s computer at their business premises. Leave to appeal was refused.

See further specific points at 7.3 to 7.5 below. The most important message from Imerman is that the ‘Hildebrand rules’ as developed and practically applied by family lawyers are discredited. They do not provide the necessary protection for clients or you, as lawyers, from the potential consequences of a breach of the law of confidence. While the rule from the Hildebrand case stands, the practice that has been developed can no longer be advised as the correct approach and family lawyers need to be aware of the significant implications of Imerman for clients and themselves.

7.1 Imerman v Tchenguiz – an overview

The judgment in Imerman provides a comprehensive review of the law in relation to confidence and family lawyers are encouraged to read the judgment itself; although most divorcing or separating

204 Guides to Good Practice couples agree to exchange financial information openly and honestly, as promoted by the Resolution Code of Practice, there are always exceptions.

Most importantly, following Imerman, married couples are now not excepted from the rule that each person has the right to privacy. Confidentiality exists between husband and wife whether prior to or after a breakdown in their relationship and whether divorce or other legal proceedings have been issued or not.

Imerman has confirmed that Hildebrand v Hildebrand [1992] 1 FLR 244 is only good law in relation to the rule that if you have a confidential document, it must be disclosed, at the latest, when you serve a questionnaire. The ‘Hildebrand rules’ do not provide authority for a spouse, in circumstances that would otherwise be unlawful, to take, copy and retain copies of confidential documents – even if there is a suspicion that the other spouse is seeking to obscure assets from view. It is not a defence to appropriating documents from the other party to tell their solicitors that you have them and provide copies prior to the questionnaire stage of proceedings.

The key question now, when assessing whether or not a document could be accessed is: ‘would the other spouse consent to these documents being accessed and copied?’. If the answer is no, it is likely that the document is confidential and accessing could lead to an actionable breach of confidence, action in trespass to goods, or criminal prosecution under the Data Protection Act 1998 and the Computer Misuse Act 1990. The court may also decide that the documents cannot be admitted as evidence in the financial proceedings and conduct may also be penalised in costs either in any injunction and/or ancillary relief proceedings.

The Court of Appeal in Imerman also stated that where confidential information has been passed onto solicitors the court might think it right, and in appropriate circumstances necessary, to go so far as to prevent the client from continuing to instruct those solicitors in the proceedings. This obviously has far-reaching implications for both the family lawyer and the client.

7.2 What is a confidential document?

Detailed consideration of the issue of whether and when illegally or improperly obtained evidence is admissible is beyond the scope of this guide. It should be borne in mind though, as indicated above, that such evidence is not automatically inadmissible.

The Court of Appeal in White v Withers LLP & Anor [2009] EWCA Civ 1122 defined ‘confidential documents’ very widely:

‘Communications which are concerned with an individual’s private life, including his personal finances, personal business dealings, and (possibly) his other business dealings are the stuff of personal confidentiality.’

It includes all documents connected with family or private life, personal and family assets or business dealings. This will include bank statements, correspondence relating to business or personal finances, and also personal documentation such as diaries.

It will not of course apply to documents regarding joint assets. It is advisable that clients are reassured that they are able to access and look for documents relating to joint assets – for example statements of joint accounts or a joint mortgage. Many clients will be overly cautious and it is important that they understand that they have the right to locate these documents and forward copies to their solicitor.

Guides to Good Practice 205 The location of the documentation will also have a bearing on its confidentiality. Imerman stated that ‘confidentiality is not dependent upon locks and keys or their electronic equivalent’ and therefore it does not automatically mean that, because a document is not contained within a locked filing cabinet or a password-protected computer, the document can be assessed and copied.

What is important is how the parties conducted their affairs. If it was common practice that documents were left on the kitchen table then it may be arguable that that document can be accessed. However, if the spouse knows that their spouse would not consent to that document being accessed then it is likely that it would be deemed confidential.

Confidentiality cannot easily be lost. Confidentiality in a document cannot be lost simply by reason of the fact that it has been left lying around the house and is discovered unintentionally by your client. The confidentiality rests in whether the spouse would consent to that document being accessed, rather than how or where it is discovered.

7.3 Advice to new clients following Imerman

The rules in relation to accessing and searching documents should be fully explained to all new clients. Family lawyers may have a client who, due to a friend or colleague’s recent divorce, is aware that previously it was acceptable to go searching for documents. In this case it is even more important that new clients are aware that the law has changed and their ability to ‘self-help’ has been dramatically reduced.

New clients should also be advised to protect their own information by ensuring all passwords are secure and all confidential information is stored in a safe and secure place.

As a minimum, family lawyers should explain the following points to new clients, probably in writing:

1. What ‘confidential documents’ are, and that they do not include documentation regarding joint assets.

2. There are now only very limited circumstances where a spouse can go looking for information concerning their spouse’s financial circumstances, and if they do search and find confidential documents then they may be criticised by the courts and they may be subject to civil proceedings and/or even be committing a criminal offence.

3. In relation to hard copy documents:

• If information is contained within a locked filing cabinet or equivalent they should not break into it or ask anyone else to do so on their behalf.

• If documents are in open files or in communal office areas, they should not look for, or copy, documents belonging to their spouse unless it is known that they would consent to those documents being viewed/copied.

• If information has been left out openly (ie not locked in a drawer or study) but it is known that the spouse would not consent to the information being copied, it should not be taken or copied. A client should be advised that it is acceptable to make a mental note of what the documents say or contain, or take a written note of the key points. However, if copies are taken then these should not be passed onto the solicitor. It is a moot point whether any written notes could be required to be delivered up to the spouse.

206 Guides to Good Practice • Any information that is sent to the solicitor has to be disclosed to the owner and his/her solicitor.

• Original documents should not in any circumstances be taken without agreement.

4. Information on a computer may include any information held on an electronic device with capacity for memory storage/access, including on a home or business computer, an external hard drive, memory stick or CD/disk, information held on the wide spectrum of handheld devices and any private email or private social network. Confidentiality would not apply to information that is posted on a public ‘wall’. So:

• If the information is password protected and the password is unknown to your client, then they must not obtain access to this information or ask anyone else to do so.

• If the information is unprotected, or available with a password which is known (or it was a joint password) then access to this information can be obtained if it is known that the spouse would agree.

• If computer access is freely available but it is known by your client that the spouse would not consent to this information being copied then it should not be copied. A client should be advised that it may be acceptable to make a mental note of what the documents say or contain, or take a written note of the key points. However, if copies are taken then these should not be emailed on to the solicitor. As above, it is a moot point whether any written notes could be required to be delivered up to the spouse.

• It should be explained to the client that if information is sent to the solicitor, then it has to be disclosed to the owner or their solicitor, even if the spouse consented to the client accessing that information.

It is also recommended that in an appropriate case a letter should be sent to the other spouse/their lawyer asking whether they hold any originals or copies of documents in relation to your client’s financial situation. This would also include documents such as solicitors’ attendance notes (obviously redacted for privileged matters), counsel’s notes, the spouse’s own notes and any correspondence passing between solicitors or any third party relating to the confidential/Hildebrand material.

7.4 What action should be taken in relation to existing (pre- Imerman) cases?

Existing and returning clients should be informed of the position, if they have not been already, in relation to accessing and searching documents where it is relevant. This is unlikely to be much of an ongoing issue as time passes, save in respect of cases that are long-running and become active again after a period of time. The same information that has been explained to new clients should be provided to existing clients and this is especially important if an existing client has in the past accessed confidential documents and may continue to try to do so.

Where there are confidential documents held on file belonging to the client’s spouse:

1. A letter should be sent to the other spouse/their lawyer explaining that following the Court of Appeal’s decision in Imerman all originals and copies of documents belonging to the client’s

Guides to Good Practice 207 spouse which have been taken by the client and retained will be returned.

2. It may also be appropriate that, prior to returning the documentation, an undertaking that the spouse’s solicitor will preserve the documents until the conclusion of the proceedings, is asked for. However, there is no duty on the spouse’s solicitor to retain the confidential information and they may refuse to give the undertaking. If this is the case, consider whether there should be an application to the court for the confidential documentation to be admitted as evidence in the proceedings if they show dishonesty (or likely dishonesty) on the part of the spouse or are in contradiction of existing disclosure in the proceedings.

3. As above, it is advised you contact the other spouse/lawyer seeking originals or copies of documents in relation to your client’s financial situation, including redacted attendance notes etc.

4. Consider whether to request the return of the documents to your client direct rather than to you – this might avoid the problem of you having any assumed responsibility for reading and ensuring that the documents/information are included in your client’s disclosure.

5. Where there are confidential documents already in the pleadings, for example attached to a questionnaire, it seems likely that, if the court has already allowed a question to be asked about a confidential document, it will admit the document in evidence, as it has already decided that the information contained is relevant. This may though depend on the circumstances of the particular case.

7.5 Options available to a client in the context of Imerman

For the majority of people who separate, information is exchanged openly as part of an agreed process, which means that litigation and recourse to the court system are unnecessary. However, if you are dealing with a spouse who is being secretive then the alternative options should be discussed with the client.

1. The first option is that the financial settlement should be resolved within the court process. This will ensure that there are stricter disclosure obligations because there is no formal obligation to disclose all details regarding financial circumstances until financial statements are exchanged. It is contempt of court not to then disclose. There is also a duty to keep this updated and therefore any changes must also be made known.

2. The second option is where you are faced with a client whose spouse is not complying with the duty of disclosure and therefore more drastic remedies would be required. The following remedies are only likely to be available after the exchange of financial statements (and therefore the costs of doing so need to be fully explained to a client):

• Production/disclosure appointments to require third parties such as accountants or business partners to bring documents to court.

• Search and seize orders (previously known as Anton Piller orders). These can be for documents and/or electronic data whether at home or in the office. Do not forget that data may also be stored on hand held devices.

• Freezing orders (previously known as Mareva injunctions), which can be used to freeze assets pending the resolution of a settlement.

208 Guides to Good Practice 7.6 Other forms of self help

Intercepting mail Intercepting mail addressed to another may be a criminal offence under s84 of the Postal Services Act 2000 (see also s1 of RIPA).

Telephone tapping/interceptions Telephone tapping of a public telephone may be a criminal offence (s1 RIPA), and is likely also to be an actionable breach of confidence and/or breach of privacy under the HRA.

Although it is not a criminal offence under RIPA for someone to record their private telephone line (if they have the right to control the operation or use of the system – s1(6)), there may be issues arising under the HRA.

Before taping telephone conversations between lawyers, the other lawyer should be warned that the conversation is going to be recorded. In a family law case, there is unlikely to be any justification for secretly taping a telephone conversation with another lawyer.

Computer Misuse Act 1980/Data Protection Act 1998/Copyright Designs and Patents Act 1988 The CMA makes it an offence to have unauthorised access to computer material and to modify computer material without authority. The consequences may be both criminal and tortious, and the sanctions include potential imprisonment/fines. The Act predates the technology it now has to deal with, and it seems that the term ‘computer’ now has a meaning that is wider than could possibly have been anticipated when the legislation was enacted.

It is safest to assume that computer material may include any information held on any electronic device with capacity for memory storage/access; including for example home or business computers/ servers/networks, laptops, external hard drives, memory sticks/disks/CDs, tablets, mobile phones and information contained within any private email account or private social network.

The DPA requires those who hold personal data to deal with it in accordance with principles and rules, and applies to private individuals and businesses. Higher standards apply to sensitive personal data. Sanctions for breach may include fines, criminal sanctions, and possible civil claims, eg for breach of statutory duty.

The CDPA protects works (which may include text, pictures, data and software) created by individuals. If, for example, another individual copies the work of another, then damages may be awarded for any economic loss suffered as a result.

8. Duty to disclose all relevant information to the client

Outcome 4.2 of the SRA’s Solicitors’ Code of Conduct requires that ‘any individual who is advising a client makes that client aware of all information material to that retainer of which the individual has personal knowledge’.

‘Material information’ is not defined, but previous guidance has made clear that it must be information which is relevant to the specific retainer with the client and not just information that might be of general interest to the client, and that would seem still to be the case. For more information, consult the Code of Conduct.

Guides to Good Practice 209 The Code states that the duty of disclosure to clients must be reconciled with the duty of confidentiality to clients. When it cannot be reconciled, then the protection of confidential information is paramount.

Good practice It is undesirable and unwise for a lawyer to pass onto another lawyer information that they do not want to be disclosed to the other lawyer’s client. It is likely to be a breach of the Solicitors’ Code of Conduct to accept/receive confidential information from the other lawyer and not disclose it to the client unless such behaviour falls within the indicative behaviours at 1B 4.4 of the Code (for example that there is evidence that serious physical or mental injury will be caused to a person if that information is disclosed to the client, or because the provisions in the money laundering legislation prohibit the disclosure). Some lawyers adopt the practice of having ‘off the record’ conversations with their counterparts. It is good practice to refuse to have such a conversation, in order to comply with the above rule.

When disclosing information to the client or to another person connected with a case, a lawyer must be certain that no offence is committed pursuant to POCA. If the lawyer is uncertain about the information that can be communicated, advice can be sought from the SRA Professional Ethics helpline. Guidance can also be sought from the SRA and Resolution websites.

9. Confidentiality

9.1 The issue of transparency has been the subject of much debate. Part 27 FPR 2010 , and PD 27B and 27C now permit duly accredited representatives of news gathering and reporting organisations (ie those who have UK Press Card authorisation) into ‘private’ proceedings from 27 April 2009, although not into hearings such as FDRs.

9.2 The fact that the media is allowed to attend a hearing does not currently mean they have the right to see documents that would otherwise be private and does not override the provisions of the statutes that are relevant to the publication of family proceedings (eg s12 Administration of Justice Act 1960 and s97 Children Act 1989). Reporting is expected to be general in nature, commenting on ‘the processes involved and the principles by which decisions are made’ (foreword of ‘Family Justice in View’, CM 7502). The rules on publication will change if and when the provisions of the Children, Schools and Families Act 2010 come into force. For more information see Resolution’s Privacy and Disclosure for Family Lawyers.

9.3 Family proceedings are held ‘in private’ (r27.10) unless the rules or other legislation provides otherwise, or the court directs otherwise. The implied undertaking of confidentiality prevents either party from using information or documents that come to light in financial remedy proceedings elsewhere, where that information has been disclosed under the compulsion of court proceedings ‘before, during and after proceedings’ (per Butler-Sloss LJ in Clibbery v Allan [2002] EWCA Civ 45; albeit obiter).

Good practice It is good practice to remind clients of the need for confidentiality at all times, both before, during and after proceedings.

The implied duty of confidentiality probably extends to information obtained prior to the issue of financial order proceedings, and as a matter of good practice, lawyers should advise their clients that

210 Guides to Good Practice the same principles do apply, particularly given the developing privacy laws and in light of Imerman. Disclosure of personal information might also result in other potential civil/criminal actions.

If specific confidential information is requested, particularly affecting third parties or of a market sensitive nature, it is good practice to ask the requesting party to sign an agreement confirming that the information sought will remain confidential and will not be disclosed.

10. When should the lawyer decline to act?

In certain circumstances of non- or misleading disclosure, the lawyer should not continue to act.

If your client refuses to disclose anything at all, you must advise them of the costs sanctions and the risk of inferences being made by the court. However, you can continue to act provided you are not privy to any information that is not disclosed or is misleadingly disclosed.

If the client says they have an asset, but gives instructions for the lawyer not to disclose, the lawyer cannot continue to act. The solicitor would be in breach of their duty to the court not to mislead it, and could also commit the offence of conspiracy to defraud, which survives the Fraud Act 2006, or fraud by failing to disclose information under s3 of that Act (see further para 5.2 above).

If, after initial disclosure, the client admits to the existence of additional assets and disclosure is then given, the lawyer can continue to act. If the client refuses to disclose, the lawyer cannot continue to act.

A solicitor must never compromise their professional integrity or their duty as an officer of the court.

See further the Solicitors’ Code of Conduct.

Note 1. This good practice guidance does not and cannot affect any obligations in law, specific court orders or rules of professional conduct.

2. Good practice guidance can inevitably only deal with the generality of situations. It cannot be an absolute rule. The special facts of any particular case may justify and/or require a lawyer to depart from these guidelines.

3. Resolution’s view is that this guidance applies to all family law cases for the better conduct and approach to resolution of family breakdown issues, and not just to cases between Resolution members.

Guides to Good Practice 211 212 Guides to Good Practice Guide to Good Practice on Referrals to Contact Centres

1. Introduction

This guide relates to all referrals of families to child contact centres. Contact centres are very valuable resources for family lawyers, so we must carefully consider whether or not their use is necessary and appropriate in each individual case. You must also be aware of the clear distinction between ‘supported’ and ‘supervised’ contact, and consideration must also be given as to which facility is needed, so that the client can be given the best advice possible as to the most appropriate resource for their family. The vast majority of referrals that a family practitioner will make will be to centres offering supported contact.

All Resolution members should be aware of the location and the facilities that their local centres offer. If you are unsure as to which centres are closest to your client’s home, we suggest that you use the search facility on the National Association of Child Contact Centres website (www.naccc.org.uk), or telephone its information line on 0845 4500 280. An annual subscription fee of £45 provides a personal login for the whole firm, enabling you to access the directory pdf, which is updated monthly, and the centre finder service, which is updated daily.

It is best practice to visit your local centre/s to enable you to advise your client and answer any questions that they may have. It is difficult to recommend a centre to a reluctant user if you have not been there yourself.

2. Referrals to supported contact centres

The ‘Revised protocol for referrals of families to supported child contact centres by judges and magistrates’ states that ‘Supported child contact centres are suitable for families when no risk to the child or those around the child, unmanageable by the centre, has been identified during an intake procedure.’ They are found in a variety of community venues. As such facilities are used where no significant risks have been identified, you must ensure that your client understands the following before they agree to using a supported centre:

• there will be several families in the room/rooms;

• staff will record attendance;

• staff are not closely monitoring or evaluating contact or conversations between parent and child; and

• no reports will be prepared for the court.

It is vital that clients know, in particular, that there is no close monitoring or reporting. One of the most common causes of difficulty – for both the centre staff and the lawyer/client relationship – is

Guides to Good Practice 213 when a client mistakenly believes that the contact is to be ‘supervised’. Many lawyers still refer to a ‘supervised’ contact when discussing a referral to a ‘supported’ centre, and it is crucial that the correct terminology is used.

Members must be aware of the revised protocol referred to above – a copy can be found in the practice support section of the Resolution website. The guidance is for the judiciary, but the principles should be applied by all.

A referral form must be completed carefully. These can usually be obtained directly from the centre but one is also available on the Resolution website. It is a standard form which can be used for any centre. These forms are often completed in haste after a hearing, which means that the volunteer support staff at the centres are often left without all of the information that they should have. This can mean that you are placing support staff and family members at risk of their cases being referred to supported centres when it may not be appropriate to do so. It is important that your client checks the form before it is sent to the centre. For example, you are unlikely to know if the child has any allergy or health issues that the centre should be aware of. If the contact has been ordered by the court, a copy of the order should be attached to the referral form.

Once the contact has been ordered and/or the referral has been made, clients will naturally assume that contact will start very quickly. It is your role to ensure that they have realistic expectations. A preparation for contact meeting will be required for both parents and the child to ensure that they are aware of the rules and facilities at the centre and to confirm suitability. Remember it is always open to the centre to refuse the referral if they consider it unsafe at any stage. Centres are also in high demand in most areas and may have waiting lists. Many centres – particularly in the south – now make a charge, and may require payment before contact commences.

Practitioners must keep under review whether or not the contact needs to remain in the centre, as if contact can safely be progressed on elsewhere (perhaps first starting with handovers at the centre) this can free up a valuable resource for another family. If the court orders that contact can move away from the centre, it is important that you inform the centre as soon as is practicable.

3. Referrals to supervised contact centres

Referrals to supervised contact centres are usually made by the court, CAFCASS, a local authority, or another child contact centre. In private law matters most centres will accept referrals if the parties are to be privately paying. If the parties cannot afford to pay then a limited number of places are available via CAFCASS-contracted placements.

A supervised centre will be appropriate where a risk has been identified requiring intervention by the centre staff, or where there is likely risk of harm to a child. These centres can ensure the safety of the child both physically and emotionally. They will also prepare written observations and reports if so ordered or agreed.

However, you must of course consider in each case whether or not supervised contact is necessary, and if so, raise this with the court/CAFCASS at the earliest opportunity.

Availability and facilities etc will vary centre by centre and again details can be found through the NACCC website

214 Guides to Good Practice 4. Contact activity directions and conditions

You must also be aware that on 8 December 2008 Part 1 of the Children and Adoption Act 2006 introduced the new ss11A–P of the Children Act. The introduction was a response to the widespread concern that the court’s powers to enforce contact orders and promote contact were too limited. You and the court must consider whether or not a contact activity direction or condition is suitable.

The difficulty in giving guidance arises from regional differences in terms of their use and application. The direction/condition that you are most likely to use is that of the Separated Parenting Information Progamme (PIP). PIP courses are group sessions lasting four hours (usually split over two sessions), although the parties do not attend the same group. Groups are intentionally of mixed gender and also mixed in terms of applicants and respondents, with the idea being that each party learns to appreciate the concerns that the other may experience. The parties watch a film portraying separating parties and work through a workbook, identifying definable goals that they can each achieve. Feedback has been very good.

There is no prescribed wording in the Act, but your local judges may have their own chosen wording. The court will make the referral to the local provider and they will contact the parties directly.

Since 1 April 2010 all fees have been abolished, save for in Wales.

For your local provider look on: www.cafcass.gov.uk/system_page/contact_activities/ partnerships•map-1.aspx.

Consideration should also be given to a direction/condition for attendance on a Domestic Violence Perpetrator Programme, which is usually only accessible when there has been a finding of fact and/or where the perpetrator is prepared to acknowledge their culpability. Places are extremely limited and may last for 10 weeks one-to-one followed by 30 weeks group work, with sessions and support also available to the victim.

Note 1. This good practice guidance does not and cannot affect any obligations in law, specific court orders or rules of professional practice.

2. Good practice guidance can, inevitably, only deal with the generality of situations. It cannot be an absolute rule. The special facts of any particular case may justify and/or require a lawyer departing from these guidelines.

3. This guidance applies to all family law cases for the better conduct and approach to resolving family breakdown issues and not just to cases between Resolution members.

Please note that the ‘National Association of Child Contact Centres’ Revised Protocol for Referrals of Families to Supported Child Contact Centres by Judges and Magistrates’ is available on the Resolution website in the Good Practice Guides section, together with the standard referral form.

Guides to Good Practice 215 216 Guides to Good Practice Guide to Good Practice for Lawyers Preparing Pre- and Post-Marital Agreements

1. Introduction

Marital agreements are becoming an everyday part of many family lawyers’ workload and it is reflective of their increasing role and existence that a Guide to Good Practice on this area has been added (2012). If these agreements are not a mainstay of your practice then it is important for you to consider instructing specialist counsel either to provide an opinion on the content of the proposed agreement, review the advice you have given, or draft/review the agreement itself.

The dynamics of the relationship between parties to a marital agreement will obviously be very different from those instructing solicitors in respect of the breakdown of their marriage, but Resolution members should comply with the Code of Practice in relation to marital agreements as much as when dealing with separation and divorce.

Understanding the dynamics of the parties’ relationship and what they want to achieve is crucial, in particular:

• Whether there is pressure coming from one party or the other, or extended family members, to have a marital agreement.

• Why they want an agreement – is it because they want to try to protect inherited, family or pre- acquired assets (eg company shares, a divorce settlement, a compensation payment for medical negligence or loss of employment), trust interests or future inheritance including for their children in the event of second or later marriages?

• Are they an international couple who need an English agreement as part of a wider jurisdictional picture where marital agreements are the norm?

• Whether the parties agree to the concept of a marital agreement and whether they have considered what it should achieve, or has it not been discussed at that stage when you are instructed?

• The parties’ respective financial positions – is one wealthier than the other or are their positions similar?

Needless to say that sensitivity is key – remembering that, in the case of pre-marital agreements, the parties are wanting to get married and may find negotiating and agreeing the terms of a marital agreement very uncomfortable.

2. Discussions with your client

The family lawyer’s initial involvement in a marital agreement is likely to commence with the party wanting the agreement seeking advice, or the party who has been asked to enter into one taking advice

Guides to Good Practice 217 – at the outset, with a letter from the other party’s solicitor, or upon receiving a draft agreement. In either scenario, discussions with your client should take place at an early stage to set out what is involved in terms of:

• process;

• disclosure;

• timing;

• costs;

• forum for discussions and the options; and

• foreign lawyer involvement (if necessary).

2.1 Costs

As with all new instructions, a detailed retainer letter should be sent to the client (see the Resolution Guide to Client Care Letters). It is important that the following are considered when providing costs information to the client in relation to a marital agreement:

• An estimate of your fees for advising on the agreement, bearing in mind the steps that should be followed:

– taking instructions;

– giving formal advice;

– providing full and frank disclosure;

– drafting, negotiating and finalising the terms of the agreement; and

– seeking advice in other jurisdictions or from other lawyers/advisors (if necessary).

• Consider insurance cover and whether your liability can or should be limited.

• Who will pay the costs – your client, the other party, a third party or each bear their own? If you are acting for the party whose costs are being paid, you must ensure that they do not feel pressured or influenced into the agreement or any terms because of that payment.

• If you know at the outset that foreign lawyers will need to be involved, make contact with them and find out what their likely costs are and confirm in the retainer letter. Are you going to instruct them on behalf of the client or will the client instruct them directly? The International Academy of Matrimonial Lawyers has a network of specialist family lawyers in other jurisdictions, which can be searched online (www.iaml.org).

• Will any other lawyers need to be involved – eg private client or corporate lawyers in respect of trust and company disclosure, or to prepare wills following the agreement? Will there need to be ancillary documents prepared – eg shareholders’ agreement if corporate interests are to be regulated. Set out whether their costs are included in your estimate or not.

218 Guides to Good Practice • Will you need assistance from third party advisers, eg an accountant? Set out what you are and are not going to do, for example if the accountant will prepare the disclosure, set out clearly that this is not included in your estimate.

• Will you be taking counsel’s advice on the agreement? What are their likely costs?

• Also consider timings with the client at this stage, what you need from them, what you will do and when you expect it to be done by. Clients often do not understand that entering into a marital agreement is not a simple process, given the safeguards that need to be considered and dealt with, managing expectations on timings and costs at the outset is important.

2.2 Issues to cover in first meeting

As has already been said, understanding why the agreement is to be put in place and the dynamic of the parties’ relationship will be crucial. Understanding the history of the relationship will be key to this and you should discuss with your client all background factors that may be relevant to the agreement, including:

• How long has the relationship existed?

• When are they getting married, in the case of a pre-marital agreement?

• Do they already live together – is there a cohabitation agreement, declaration of trust regarding property, existing marital agreement or, in the case of an international couple, a separation de biens or other marriage contract and, if so, why they entered into it and the advice and other circumstances at the time of entering into it?

• Do they have children, either from this relationship or from a previous relationship who are children of the family?

• What are their respective assets and how have they conducted their financial arrangements during their relationship to date?

• Consider whether your client is the financially weaker or stronger party and whether they should be taking advice at all, as it may add weight to an agreement that is not in their interest and they are being pressured to sign. Consider whether it is in your client’s interests to take detailed advice.

• What is the main purpose of the agreement and what terms are intended to be covered?

• Is the agreement intended to deal only with divorce, nullity or separation, or regulate how assets are dealt with during the marriage and/or on death?

• What does your client’s current will say and how will it need to be changed after the agreement has been entered into?

• Is confidentiality an issue for the client(s) and should specific provision be included to deal with this?

This list of questions is not intended to be exhaustive, but a guide to the issues which may need to be considered.

Guides to Good Practice 219 It is also important at the outset to consider the correct forum for the discussions/negotiations (discussed further below).

2.3 Advising your client

It may be that the advice needs to be dealt with in two parts, depending on who you are acting for – general advice about marital agreements when taking initial instructions and then specific advice, including in writing, on the agreement itself.

It is recommended for advice to be given to the client by the lawyer in writing before the agreement is executed as it may form a key part of the evidence if the agreement’s validity is questioned at a later date in proceedings. Keeping detailed written attendance notes of all discussions with the client and the other solicitor is also advisable, including how your client feels (eg whether they feel pressured into the agreement or whether they understand it).

In order to satisfy the requirements for each party to have independent legal advice, it is recommended that the following matters are covered in the advice given to the client:

• The safeguards that are recommended: financial disclosure, independent legal advice, no undue pressure, does it meet ‘needs’ and what is required to meet these safeguards.

• If the agreement were to be followed, how the outcome on divorce (or nullity) might differ from the outcome if there was no agreement.

• What rights the client may be giving up by entering into the agreement.

• What their rights/claims would be if they do not enter into the agreement or do not get married.

• How provision for children should be dealt with and the impact of the marriage on the court’s ability to make provision for any children of the family.

• The limitations of marital agreements – that they are not automatically enforceable in England & Wales as the law stands (although the agreement may have a different status in another jurisdiction where these agreements are legally binding).

• Changes in circumstances may affect the validity of the agreement – eg:

– the birth of children;

– changes in asset values (increase or decrease);

– change in the law; and

– change of country of residence/change of domicile may invoke the jurisdiction of another court and the agreement may not be recognised there.

• If there is to be a review clause, what will be needed at the time of the review or review event, and the implications of not then dealing with the review.

As has been stated, this advice should be given in writing (if you have considered with the client that taking advice is in their interests and would not strengthen an agreement that is unfair to them).

220 Guides to Good Practice 3. Forum for discussions

It is important for you and your client to consider together the right forum for discussions as there are a variety of options available that could have a significant impact on how your client feels about the process itself as well as the outcome.

You might discuss with your client:

• How comfortable they feel about face-to-face discussions regarding the agreement with their fiancé(e)/spouse, eg is finance something they are comfortable to discuss openly or is it a difficult topic between them.

• Would they prefer discussions to take place ‘round table’ so that there are no misunderstandings and they have the ability to listen to and contribute to the discussions. Alternatively, they may prefer you (potentially with another professional, eg accountant) to lead the discussions so that they do not feel they are placed in an awkward position with their fiancé(e)/spouse.

• The level to which your client feels confident in discussing finances; for some (but not all), it is too difficult for them to be able to process the financial consequences of what is being discussed and, particularly so, where the motivation for reaching an agreement is to marry their fiancé(e)/spouse.

• To what extent your client and their fiancé(e)/spouse intend to discuss the negotiations at home and whether that is to be encouraged or avoided.

• Understand what level of transparency your client considers should exist as between the lawyers in terms of instructions from the clients.

The forums which can be used for discussions include:

• Round table meetings with lawyers but with or without the clients on some or all occasions.

• Using a collaborative approach (see further below).

• Mediation (with the agreement then being drafted by the parties’ lawyers).

The relationship and communication between the lawyers representing the clients is also crucial in maintaining a constructive approach for the clients. This will avoid tensions wherever possible. The lawyers should actively seek to keep any differences of opinion on the terms of the agreement as a source of debate rather than conflict. It is essential that the clients are kept, so far as possible, from reaching the point of ultimatum.

Once lawyers are instructed to act, they should begin a dialogue as soon as possible and ideally discuss, based on their instructions from their respective clients:

• Forum for discussions.

• What level of financial disclosure will be provided on each side and whether it will be exchanged. Are forms E appropriate or necessary for both or either client? Will schedules of assets be sufficient to provide the material disclosure necessary for the agreement and who will provide them (eg an accountant where appropriate)?

Guides to Good Practice 221 • What supporting information/verification is required in respect of the schedules/forms E?

• Where there are valuations to be obtained, should there be joint or sole instructions?

• If there are questions to be raised on the valuations/schedules, how will this be dealt with – in meetings or in correspondence?

• Whether the discussions between the lawyers will take place on an open/without prejudice and subject to contract basis until the agreement is executed.

• Would there be a purpose in producing heads of agreement for the clients prior to either lawyer undertaking the cost of drafting the agreement?

• Which lawyer will draft the agreement or whether the drafting can be dealt with jointly.

• Lawyers should follow the Code of Practice at all times when dealing with each other in relation to these agreements.

• Using a collaborative approach can be ideal for these agreements. Where the parties’ lawyers are collaboratively trained, this should be carefully considered as the benefits include:

– Openness and transparency.

– Emphasis on honesty and trust between the lawyers as well as the clients.

– Ability to explore freely all of the options and considerations for the clients in a supported environment.

– Articulating and recording clear, shared goals for the future.

– Four-way meetings, which can avoid misunderstandings and tensions.

– Clients playing a full role in the process.

4. Safeguards and general considerations

There are safeguards to consider in the client’s interest as well as general considerations for the lawyer to take into account when preparing the agreement. The law is constantly evolving in this area and lawyers advising in relation to these agreements must keep up to date with case law and seek specialist counsel’s opinion if in doubt.

A sound starting point when drafting a marital agreement remains the Resolution Precedents for Separation and Pre-Marital Agreements. Practitioners should bear in mind that the decision in Radmacher [2010] UKSC 42 emphasised that:

‘the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’

The general safeguards from the client’s perspective in terms of the considerations that might enhance or detract from the weight of a marital agreement include the following:

222 Guides to Good Practice • The parties must enter into the agreement without undue pressure or influence.

• The parties must be informed of its implications and be advised independently on its terms by lawyers, even if the terms of the agreement itself have been reached through mediation.

• A key question is whether there has been any ‘material lack of disclosure, information or advice’ given to or received by the client.

• Are there any standard vitiating factors – eg fraud or misrepresentation? If so, the effect of the agreement will be negated.

• Is there any unconscionable conduct (eg pressure falling short of duress) which may be likely to eliminate the weight to be attached to the agreement, or other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage? The lawyer must consider this carefully where the motivation for the marital agreement is from the family of one of the parties or the costs of the agreement are being met by the financially stronger party or their family.

• The circumstances of the parties at the time will be relevant: their age, maturity, emotional state, previous marriages and so on.

• If the terms of the agreement are unfair from the start, this may reduce the weight of it in the future.

When considering whether the content of the agreement is likely to be followed by the court in any subsequent breakdown in the marriage, the over-riding criterion is fairness but do bear in mind the following:

• The key issue is whether the agreement ‘makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness’.

• Crucially, the Supreme Court in Radmacher explains that ‘the fact of the agreement is capable of altering what is fair’.

• If each party is in a position to meet his or her ‘needs’ then ‘fairness may well not require a departure from their agreement’. If any rectification of the agreement is necessary, the court may only deal with making up the shortfall necessary to meet needs.

The Supreme Court guidance in Radmacher currently highlights the following main issues for consideration:

• Children: a marital agreement cannot be allowed to prejudice the reasonable requirements of any children of the family.

• Autonomy: the court emphasises the importance of respect for personal autonomy over paternalism.

• Non-matrimonial property: the Court considers that ‘there is nothing inherently unfair’ in an agreement which makes express provision for pre-marital property or future acquired property from third parties (inheritances).

From the lawyer’s perspective, in terms of practical tips to consider, these would include:

Guides to Good Practice 223 • Keeping good attendance notes in case there were to be a challenge to the agreement in the future.

• Giving the client advice in writing explaining carefully the terms of the agreement as well as any rights/entitlements that are being conceded/compromised as a result of the agreement. This advice should be given prior to signing and a clear and careful record kept of the client’s understanding of the agreement.

• The agreement should, in theory, be signed as far in advance of the marriage as possible, ideally not less than 21 days before the wedding.

• Consider recording in the recitals any special or unusual features or other considerations that have been taken into account eg the clients acknowledging that they are satisfied that they have received material disclosure even if it is in short-form and have no further questions to raise, or that the agreement has been entered into close to the date of the marriage but accept that they did not require more time for reflection/consideration.

• Any financial disclosure exchanged should be annexed to the agreement as schedules.

• Is a review clause appropriate eg in the event of the birth of a child, retirement, or simply after a period of years?

• Language: all advice should be given in the client’s first language and translations provided as necessary for the clients.

• Lawyers’ certificates. It is becoming common for lawyers’ to confirm in a certificate annexed to the agreement that legal advice has been given to the clients, but whether this is appropriate will depend on the circumstances.

• Foreign elements: consider whether the agreement needs to be notarised if it is to have weight in another jurisdiction.

• Keep your files and store the documents and advice with the deed/agreement indefinitely. Consider whether you want to record round-table meetings as an audio file and save them with the agreement, as this can be the best evidence of the parties’ intentions at the time. It will of course depend upon the case and the parties’ wishes as to whether or not this is appropriate.

224 Guides to Good Practice