'The Burrows amendment'…
A 1996 pilot scheme for finances of divorcing couples
‘We call it “the Burrows amendment”’ said the Lord Chancellor, Lord Mackay, as we sat at a round-table – him, six civil servants from the Lord Chancellor’s Department (now Ministry of Justice) and me. It was late November 1996. The ‘amendment’ was to the important Civil Procedure Act 1997 Sch 1, and was added as para 7. It concerned proposed pilot schemes for civil proceedings, and it says:
Different provision for different cases etc.
7 The power to make Civil Procedure Rules includes power to make different provision for different cases or different areas, including different provision—
(a)for a specific court or specific division of a court, or
(b)for specific proceedings, or a specific jurisdiction,
specified in the rules.
For family proceedings this provision is repeated almost word-for-word in Courts Act 2003 s 75(4); and since 2004 schemes like this apply also for dissolution of civil partnerships.
In a comment on Joshua Rozenberg’s recent piece (Substack, 18 July 2024) on the new Labour Lord Chancellor
I mentioned that I had had a modest part in the 1997-8 civil procedure rules reform, working with Lord Mackay.
His office had summoned me to his room in the House of Lords in relation to a then new financial relief procedural scheme for dealing with matrimonial money claims. The scheme had come into effect on 1 October 1996. It was designed as a ‘pilot scheme’ and operated in the Family Division, the principal registry (London) and 27 county courts (including Bristol, where I then practised). In those days the family courts were split into those tiers. (In the new ‘unified family court’ it is not much different; but that is a subject for another day.) The new pilot scheme rules were later incorporated into the then family proceedings rules for all court from 21 April 1997.
Law reform by practice direction
About six months before my summons I had been writing about my concern that the original scheme had been introduced by a ‘President’s direction’ (see [1996] 2 FLR 368) of 25 July 1996. The new ‘rules’ were annexed as a ‘draft rule’ to the direction; but without any regard to delegated rule making powers (as now set out in eg Courts Act 2003 ss 75-77 for family courts rules). The scheme applied to all financial relief applications issued in the nominated courts where all parties had to follow the new procedure.
Before the Constitutional Reform Act 2005 (which more or less now regulates practice directions: for a little more on practice direction see ‘Where have all the practice direction gone?’) such instruments as President’s Directions were provided for by largely informal non-statutory means. This ‘President’s Direction’ was no exception. (Anyone looking for more on the background to all this can find it in Ancillary Relief Pilot Scheme (David Burrows, Family Law, 1997) and Ancillary Relief: The New Rules (David Burrows, Family Law, 2000).)
Vires of the new ‘pilot scheme’
A pilot scheme set out in a ‘practice direction’ was mongrel law-making, as I saw it. It might leave one or other party vulnerable if the law-making itself was challenged by the other spouse by judicial review (say) of the actions of one of the county courts involved. Suppose a husband did not like an order made under the scheme in resolving his finances and questioned its vires. Part of his challenge would be how the new ‘rules’ had been made and what was their procedural force in law.
The format and intent of the pilot scheme rules was radically different from the old. They departed completely form the old affidavit in support of the financial relief claim and the respondent’s affidavit in reply, followed by interrogatories, uneven means of ‘discovery’ (now called ‘disclosure’) of the existing scheme. Now (1) the process was started by a brief form and followed (2) shortly before a first directions appointment by each party filing a standard form ‘financial statement’ (‘Form E’) and exchanging this with the other spouse.
Prior to that first directions appointment questions could be raised by each party but (3) replies to questions and production of documents was to be strictly limited by the court and (4) geared to the parties’ assertion of the issues for trial. (5) A rigid case managed timetable up to trial was to be adhered to, based in part on those issues. And (6) the brand new financial dispute resolution appointment – court-based mediation by judges (mostly by district judges) – was introduced (based largely on work being done by district judges in Bristol). This procedure is still now, broadly, followed.
If the new procedure were to be declared ultra vires (ie outside the statutory powers (if any) of the maker of this practice direction) the unfortunate couple might be back at the beginning, under the old rules process and without passing ‘Go’. Were that to happen perhaps all the new scheme orders would be open to challenge (on application by any disgruntled party).
Pilot schemes and family proceedings
‘So what shall we do about it, David?’ said the Lord Chancellor. (I had met Lord Mackay a couple of times before). I suggested a letter be sent out to all parties explaining the pilot scheme arrangement, and proposing to them an immediate transfer to a non-pilot scheme court if they preferred and insisted. As far as I know that letter was never drafted, still less the idea used. And I know of no judicial review application challenges.
The question all became history, when Civil Procedure Act 1997 Sch 1 para 7 became law and the ‘pilot scheme’ was applied nationally by amendment of Family Proceedings Rules 1991 (the rules which then regulated family proceedings). The amendment was in force from April 1997. And as mentioned above, the ‘Burrows’ amendment lives on into family law as Courts Act 2003 s 75(4).
David Burrows
18 July 2024