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Ancillary Relief

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This set of Guidance notes replaces the previous set of notes issued by Judge McReynolds.

Pending further consideration, and with a view to empowering the parties involved in Ancillary Relief applications and ensuring that the overriding objective is complied with, it has been decided that these Guidance Notes will apply to all applications from 1 May 2006.

The Court must further the overriding objective of justice by actively managing cases.  This includes (but is not confined to):-

  1. encouraging the parties to co-operate with each other in the conduct of the proceedings;
  2. encouraging the parties to settle their disputes through mediation, where appropriate;
  3. identifying the issues at an early date;
  4. regulating the disclosure of documents and expert evidence so that they are proportionate to the issues in question;
  5. helping the parties to settle the whole or part of the case;
  6. fixing timetables or otherwise controlling the progress of the case
  7. making use of technology;
  8. giving directions to ensure the trial of the case proceeds quickly and efficiently.

From 1 May 2006 all grounding affidavits shall contain the information relating to the items set out in Annex 1.  A short section concerning conduct may be included but only where it would be inequitable to disregard it in terms of the relevant case law.

The First Directions Hearing will be in the same format as the present First Directions Hearing.  This hearing will set a timetable for the filing of all necessary documentation to include a replying affidavit, discoverable documentation, discovery questionnaires etc.  A suitable period of time, depending on the complexity of the case, will then be allowed for the filing of the necessary documentation.

After 1 May 2006 any replying affidavit filed should also include the information set out in Annex 1.  Any replying affidavit after 1 May 2006 must be filed in the Matrimonial Office at least 21 days before the First Review Hearing.  The parties must also file at least 14 days before the first review hearing the following documentation:-

  1. valuation of less than six months vintage of any real property referred to;
  2. most recent mortgage redemption statement;
  3. bank statement for the last 12 months for every account listed;
  4. surrender value quotations for every life policy of less than 6 months vintage together with the policy schedule and surrender value at the date of separation;
  5. copy P60 to 5th April of last financial year;
  6. last 6 month’s payslips;
  7. last two years accounts of the business if self employed and tax returns and Inland Revenue calculations for the same period;
  8. if the deponent has an interest in any other business, accounts for the last two years and any other documentation on which a valuation is based;
  9. a pension statement and CETV value of less than 6 months vintage provided by the Trustees or the manager of each and every pension scheme identified together with statement of benefits;
  10. any other documentation necessary to explain or clarify any of the issues;
  11. questionnaires listing any discovery sought.

The Court appreciates that in more complex cases that more extensive discovery will be necessary but further discovery will only be ordered if it is proportionate to the complexity and value of the case.  The parties may of course continue to request discovery pursuant to Rule 2.64(4) of the Family Proceedings (Northern Ireland) Rules 1996; however no further discovery will be ordered save by questionnaire ordered by the Court.

Any party in default in regard to the filing of the affidavit or accompanying documentation will be penalised in costs.  Any legally assisted party in default with have the usual legal aid costs order made against them but can expect to have that order activated in the event that they receive property at the end of the case.  See McWatters (a minor) -v- Belfast Education and Library Board [1996] NIJB.

There will then take place a First Review Hearing.  All First Directions Hearings and First Review Hearings will be conducted by the Master (High Court Matrimonial) who will allocate cases to be reviewed or heard thereafter by one of three other Masters. All first review hearings will be by appointment and allocated twenty minutes.

The purpose of the First Review Hearing will be to ascertain whether or not the case is in a position to move onto the Second Review Hearing which will take the form in part of a Financial Dispute Resolution Hearing.  The issue of experts’ reports will be considered at the First Review Hearing and a realistic timetable set for their submission.  Efforts should be made to agree valuers, accountants etc.

At least 21 days prior to the Second Review Hearing the following items will be filed with the Matrimonial Office:

  1. a statement of core issues;
  2. a written estimate of costs to date to include a breakdown of solicitor’s professional fees together with outlays and VAT;
  3. a paginated bundle of any further discovery ordered at the First Review Hearing;
  4. copies of experts’ reports or valuations to be relied upon.

The date for the Second Review Hearing will only be vacated in exceptional circumstances.  All parties, solicitors and counsel briefed in the case shall attend the Second Review Hearing.  Second Review Hearings will be given an appointment hearing, fixed in time, and thirty minutes will be allowed for each review.  The hearing will be conducted by a Master who will not be hearing the case if it is contested, who will endeavour to assist the parties to settle the case.

The purpose of the Second Review Hearing will be:-

  1. to define issues.
  2. to save costs.
  3. to endeavour to settle the case.

In the event that the case does not settle the following shall occur:

A date shall be fixed for hearing, again by appointment.  This date will only be vacated in exceptional circumstances.  As with the vacation of dates for Second Review Hearings the defaulting party will be penalised in costs with the same provision for legally aided litigants as set out above.

The parties will be given one last opportunity to negotiate prior to the hearing.  The parties will be obliged to record all offers, responses and agreed matters.  On any argument as to costs the Court will ask to see a note of this record.  A note of costs will also be required at the final hearing for the benefit of the parties.

It is anticipated subject to the workload of the Integrated Court Operating System Unit that the First Directions hearings in the new format will commence in June 2006.  Cases under the present system will continue as before although practitioners should expect a further tightening of permitted discovery.

It is not proposed that the new system should operate in an inflexible way and genuine reasons for adjournment will of course be considered.

Financial Service Enquiries

Where it is ordered that either party shall make appropriate financial services enquiries, it is expected:

  1. that they shall make such enquiries of at least 2 separate financial institutions.
  2. that the details of the enquiries made shall be provided, supported by documentary proof, to the other party and to the court.
  3. that the outcome of the enquiries made shall be provided, supported by documentary proof, to the court.

Discovery

Discovery should be full and frank but confined to that which is relevant to the issues and its volume and detail should be proportionate to the financial resources and complexity of the case.

In cases where the only assets are a Matrimonial home, occupational pensions, savings, stock exchange listed shares and insurance policies and the income is PAYE taxed; it should be possible to annex the entire relevant and appropriate discovery to the primary affidavit.  In Maintenance Pending Suit Applications (unless there is agreement to negotiate globally in anticipation of an early Decree) discovery should be limited to income.  Maintenance Pending Suit is often misconstrued as establishing an artificial benchmark and is often a forum in which discovery requests are disproportionate to the issue.

Where the total number of pages of discoverable documentation is less than 50, it is reasonable to expect each party to send the other copies as a matter of professional courtesy.  Beyond 50 pages, a charge may be justifiable, if copies are required.  It should, however, be acknowledged that Order 24 rule 13(1) is not hereby displaced.

Where papers are extremely voluminous, inspections should be arranged.

At least 21 days prior to the Second Review Hearing an agreed bundle for the Court of core documents should be arranged between the parties, if it appears the case will inevitably have to proceed to full hearing.  The indexation should be agreed, as duplication of bundles is wasteful.  The primary responsibility for preparation of the core bundle belongs to the moving party.

Lawyers should advise their clients on the level of discovery to be sought rather than responding solely to their requests as stressed by Thorpe J in F-v-F (Ancillary Relief: Substantial Assets) (1995) 2FLR 45.  Parties engaged in matrimonial proceedings are (naturally and instinctively) curious as to the lifestyle of a former partner.  Often clients are fascinated by every ‘switch card’ transaction but it is the duty of lawyers in the first instance to confine requests to the purposeful and relevant thereby maintaining the assets/costs balance.

Experts

Use of expert evidence and advice should be governed by the principles of relevance and proportionality.  The expert’s fundamental duty is to assist the Court on matters within his expertise (and outwith the Court’s knowledge) rather than state simply that which a party wishes him to represent – see comments of Evans and Thorpe LJJ in Vernon v Bosley (Expert Evidence) (Note) (1998) 1 FLR 297.

Before engaging an expert to value a matrimonial home or other property the parties should set out their views of valuation in affidavit.  At the first Review Hearing the gap (if any) can be established and efforts made to identify and instruct one valuer acceptable to both.  It may be purposeful to engage a valuer at an early stage if negotiations are commenced before proceedings.

If it is necessary to instruct separate experts for each party (for example accountants); this should be raised at the first Review Hearing and consideration given as to whether there is identifiable common ground and reduce the issues in respect of which the experts differ.  Other than in exceptional circumstances, reports should be incorporated into affidavit form, filed and exchanged at least 21 days in advance of the Second Review Hearing.

Experts should be directed to the issues by legal representatives and should be engaged on strict terms by solicitors.  Estimates of experts’ costs to date should be available at every stage and be exchanged.  Each party should be informed of the hourly rate for attendance at Court.  The scope of enquiry should be defined by legal representatives, and where accountants are engaged to value an interest in a business, they should use a recognised method, which should be stated in their reports.

Questionnaires should be drafted by counsel or solicitor, (if necessary, with accountancy advice) but not by accountants.

Before engaging actuaries consider the case of T v T (1998) 1FLR 1072.  The fact that an expert witness gives evidence does not mean provision will be made for his costs.

Solicitors should ensure that they retain copies of this Guidance Note for distribution to their clients prior to the First Review Hearing.  Clients will be asked at the Second Review Hearing if they have received a copy.


Annex 1

Full Name.

Date of Birth.

Date of Marriage.

Occupation.

Date of separation.

Date of the Petition.

Date of the Decree Nisi/Decree of Judicial Separation.

Date of the Decree Absolute (if applicable).

If remarried, or will remarry, state the date.

Do they live in a relationship with another person.

Do they intend to live in a relationship with someone within the next six months.

Details of any children of the family

  1. full names
  2. dates of birth
  3. with whom does the child live

Give details of the state of health of the parties and the children’s health.

Give details of the present and proposed future educational arrangements for the children.

Give details of any Child Support Maintenance Assessment or Child Maintenance

Orders made between the parties.  If no assessment or agreement has been made, give an estimate of the liability of the non-residential parent under the Child Support Act 1991, in respect of the children of the family.

If this application is to vary an order, give details of the order that is to be varied and attach a copy of the order.  Give the reasons for asking for the order to be varied.

Give details of any other court cases between you and your husband/wife, whether in relation to money, property, children or anything else.

Specify the present residence and the occupants of it and on what terms it is occupied (eg. tenant, owner-occupier).

A brief statement concerning the history of the marriage .

A statement of current monthly income and outgoings.

Details of any property or other assets whatsoever owned by the parties to include whether the title to any real property is registered or unregistered with the appropriate folio number.  Brief details should also be provided as to how and when the matrimonial assets were acquired with details as to whether the property constitutes a pre marital asset, whether it was inherited or whether it was acquired after the marriage.  Details should also be provided of any known mortgage charge or lien on the property referred to. 

If the application is for variation of a settlement order the affidavit should contain details of the property in respect of which the application is made and the property to which the party against whom the application is made is entitled in possession or reversion.

If the application is for a variation of settlement order the affidavit should contain details of all settlements, whether ante nuptial or post nuptial, made on the spouses and details of the funds brought into the settlement by each of the spouses. 

If the application is for an avoidance of disposition order the affidavit should contain details of the property to which the disposition relates and details of the person in whose favour the disposition is alleged to have been made, and in the case of a disposition by way of settlement, details of the trustees and beneficiaries of the settlement.