It is easy to get so used to the ‘standard’ procedure for financial provision claims that little attention is given to the accelerated procedure when a variation application comes around. It often happens that the parties – and the court – fall into the usual routine of extensive disclosure, questionnaires and, inevitably, cost. But a recent decision of Peter Singer J reminds us that there is no ‘one size fits all’ when it comes to variation applications, and the court has discretion to significantly stream-line the process.
The case in question – Joy-Morancho v Joy (Dismissal of Variation Application)  EWHC 2086 (Fam) – is part of the long-running saga of the divorcing Joys. Peter Singer J made a first instance decision, ordering the husband to pay to the wife periodical payments of £120,000 p.a. on a joint lives basis. The husband appealed (unsuccessfully) and, at the same time, applied to vary the order downwards. His application to vary “wended a dilatory course” and took almost 2 years from the date of the original order to the hearing of the variation application. Peter Singer J ordered that the variation issue should be dealt with on submissions only, and rejected the attempts of counsel to list the matter for a 2 day hearing after joinder of a third party, extensive disclosure, questionnaires and witness statements. The judge commented that “[e]ach party plainly envisaged something in the nature of a State Trial.” The judgment gives a helpful guide to the court’s extensive case management powers in this type of application.
It is helpful first to consider what the Family Procedure Rules 2010 say about the accelerated procedure. The issue is governed by Part 9 Chapter V. The accelerated procedure will automatically be used where a variation application is made. If the applicant does not wish to use such procedure, and would prefer the more usual Chapter 4 procedure, they must seek such a direction as part of their application and give reasons (rule 9.18A). The court will determine the appropriate procedure in box work.
‘Accelerated procedure’ is no misnomer. Rule 9.18(1)(a) requires the court to fix a first hearing date “not less than 4 weeks and not more than 8 weeks after the date of the filing of the application” (although the author has experience of this being ‘missed’ by court listings). The date cannot be cancelled “except with the court’s permission and, if cancelled, the court must immediately fix a new date” (rule 9.18(3)).
Parties have just 14 days from the date of issue to exchange and file financial statements (Forms E2) and rule 9.19(4) provides that “[n]o disclosure or inspection of documents may be requested or given between the filing of the application for a financial remedy and the first hearing except copies sent with the financial statement”.
There is some encouragement in rule 9.20 for the court to determine the application at the first hearing, but where that is not possible the court may direct the filing of further evidence and list another hearing. The rules therefore suggest that variation applications should be swiftly dealt with, and should not be allowed to drag.
So what does case law say? Peter Singer J was clear that the court retains its duty to “have regard to all the circumstances of the case” in variation applications as it does at first instance (the wording appearing in both s.31(7) and section 25(2) of the Matrimonial Causes Act 1973). But that does not mean the matter is looked at ‘de novo’. He cited Moylan J in Morris v. Morris  EWCA Civ 812 as saying:
“[t]he court must conduct an exercise which is proportionate to the requirements of the case. They might warrant a complete review but they can also justify…a light touch review. In this respect…the court can confine its consideration to factors relevant to the variation application.” He clarified that “although section 31(7) requires the court to have “regard to all the circumstances of the case”, this is not the same as requiring the court to undertake the section 25 exercise de novo”. “The court has “enormous flexibility” to determine the “nature” of the substantive hearing… Specifically, to require the court to undertake the exercise de novo would be contrary to the overriding objective and the obligation for a case to be dealt with proportionately.”
Peter Singer J also reminded the parties that the court must further the overriding objective, and must actively manage cases. Rules 1.4(2)(b)(i) and (c) require the prompt identification of issues, which involves isolating those which need full investigation (and therefore, impliedly, also those which do not).
Having considered the authorities, Peter Singer J rejected counsel’s proposed directions, stating “I declined…to set the battlewagons rolling down these tracks.” He cautioned that the ‘winner’ of “such a full-blown conquest” would gain a Pyrrhic victory given the implications for the parties’ legal costs. In the circumstances he directed a hearing on submissions only.
What can we learn from this decision? It is a reminder of the utility of the accelerated procedure: parties and the court should be held to account in ensuring that it is complied with. It is also a reality check for those wanting another court battle: the judge may simply not allow it. Finally, it is a sobering tale of Big Money litigation, in which the couple have spent as long litigating the divorce as they spent married to one another.
This is part of a seminar on variation applications which Holly Coates will be giving in the New Year.