“GRABBING THE CASE BY THE SCRUFF OF THE NECK”: CASE MANAGEMENT IN THE FAMILY DIVISION

For the second time in two days we are looking at a report from the Family Division, seeking inspiration for civil lawyers. The robust case management decisions by Holman J in Abuchian -v-Maksoud [2014] EWHC 3104(Fam)  are, in part, decisions in a civil case. It shows that clear directions can ensure that hearings, and trials, take place rapidly and within a short timetable, albeit that some of the interlocutory sparring on disclosure will have to be forgone. 

THE ISSUES

The action was between former husband and wife. The husband had validly divorced the wife in Saudi Arabia.  The wife was, among other things, bringing an action under the Marries Women’s Property Act 1882 in relation to the ownership of property.  The husband made a number of applications, including an application to strike out the action on the basis that a court order had not been complied with and file a reply to the defence within 14 days of service and then give disclosure.

THE RULES

The Family Procedural Rules give a power to strike out a case where there has been a failure to comply with a rule, practice direction or court order. The reply was served one and a half days late, no time period (and no sanction) was set for disclosure. The strongest the husband’s case got on this issue was that disclosure was later than than agreed in inter-solicitor correspondence.

THE APPLICATION TO STRIKE OUT

This application was not pressed with any degree of vigour, although never withdrawn. It was dismissed.

THE WIFE’S APPLICATION

The wife made an application that the husband’s application to set aside the grant of permission to apply for financial relief after an overseas divorce should be heard on the same day as the pre-trial review of her claims under the Married Women’s Property Act.  This application was resisted by the husband. The judge considered the husband’s objections and took active steps not only to bring forward the application but to ensure that a rapid, and effective, trial of the issues could take place:-

  1. To my mind that is all the more reason why it is essential to have as early a resolution as possible of the question whether or not the grant by Sir Peter Singer of leave or permission to apply should be set aside. Further, it is an obvious application of the overriding objective in the rules that all these issues should be corralled together and dealt with as early as possible with as few hearings as possible.
  2. I stress again the ages of these parties and the duration of their marriage. I sincerely wish a long life and every good fortune to the husband. I have no evidence whatsoever as to his health or well being, but it is a fact that he is aged 89, and it is only human nature that a person of 89 may be vulnerable to death or ill health. It is, therefore, of a special importance in this case that all these issues between these parties should be heard as soon as practicably possible. This is not the sort of case which can wallow or luxuriate in a delay of a year or more whilst procedures wend their weary way. Further, the husband himself has made very clear in his documents that he badly wishes to be able to sell the flat in North London in which the wife is currently residing. As I understand it, he feels, amongst other matters, that it may diminish in value, and in any event he is anxious to discharge a large mortgage upon it. So it is objectively very much in the interests of both these parties that all issues between them are brought to a head and a speedy resolution.
  3. I made all these suggestions to the advocates at a very early stage at the outset of this hearing. I have made enquiries of the Clerk of the Rules during the course of the day. I have established that the hearing that was fixed on Monday, 29th September as a pre-trial review for one hour can in fact be enlarged to an entire day with nothing else at all listed before the identified judge. Mr Amos strongly submitted that he did not wish his application for a set aside to be squeezed for want of time, nor proper consideration of directions in the various sets of proceedings to be squeezed for want of time. But even Mr Amos accepted that if one full day is allowed and made available, that should be ample both for full, fair and just consideration of the application to set aside the grant of leave or permission, and also consideration of all necessary directions in all proceedings that then remain after the court has considered whether or not to set aside the grant of leave or permission. It seems to me, therefore, that there is absolutely no downside to either party, and every possible advantage to both parties (and also to other litigants and court time generally) if the issue whether or not the grant of leave or permission should be set aside is advanced from the hearing currently fixed for26th November 2014 to 29th September 2014. That is what the wife sought by her application issued on 5th September 2014, and it follows that that application is of course successful.
  4. But my primary purpose, in advancing the issue of setting aside the grant of permission or leave, is to open the way to a full, fair, final hearing of all issues between these parties in November 2014. I have also been able to arrange with the Clerk of the Rules today that the four day hearing that had been fixed to start on Tuesday, 11th November 2014 can in fact be enlarged or expanded to a seven day hearing beginning on Monday, 10th November 2014 and ending on Tuesday, 18th November 2014. No party has suggested that seven days will not be ample time for the court fully and fairly to consider all issues between these parties including discretionary relief under Part III of the 1984 Act in the event that the husband’s application to set aside the grant of leave or permission is not successful.
  5. I have made crystal clear to Mrs. Carew Pole, who appears on behalf of the wife today, that I fix that very rapid timetable for the overall advantage of the wife as well, of course, as of the husband. It is enormously to her advantage, bearing in mind in particular the age of her husband, that all these issues are very rapidly resolved. The alternative, if the existing timetable had remained, would be some final hearing date of her application under Part III, if it survives, many months hence during 2015. It would also necessarily involve two separate lengthy hearings, both in November 2014 and again sometime in 2015. So there is the enormous advantage to her of speed and of course reduction in costs. There is an advantage to the public in that one seven day hearing will be required rather than two lengthy hearings.
  6. The possible price that the wife must pay, however, is that she will not be able in this case to press for weeks and weeks and months and months for forms of disclosure and discovery in the way that sometimes happens in these high value cases. I have made quite clear to Mrs Carew Pole today, in the presence and hearing of her client, that now that this accelerated timetable has been fixed it must be adhered to. If that involves compromise by her and her advisors on the degree of enquiry, they must accept that compromise as the price of the greater advantage of an accelerated global hearing.
  7. So for those reasons I have made the two essential decisions which arise on today’s applications; first, that there is no strike out, and, second, that the whole timetable should be brought forward with the set aside application being finally considered on Monday, 29th September.”

THE SHAPE OF THINGS TO COME OR SOMETHING A LONG TIME ARRIVING?

As long ago as 1991 judges were being encouraged to “take cases by the scruff of the neck” by Donaldson M.R. in Mercer -v- Chief Constable of Lancashire Constabulary [1991] 1 W.L.R. 367.  This Abuchian case is clearly going to be resolved by early application, or heard in full by the end of the year.

 

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