What is the best way to deal with an ex who tries to drag out the ancillary relief proceedings? For example, had the FDR and ex is making useless allegations of conduct which means that the final hearing has to be 4 days long and will not happen for another 5 months because of the court's listing issues. Can I:
1) Apply to strike out weak parts of the other side's case to get a shorter hearing faster,
2)What happens if the ex does not turn up for the final hearing? Does that mean it will be adjourned for another 5 months whilst the court tries to find another spare four days?
Cases are now "actively" managed by DJ's and I have had loads of cases where conduct is aleged-99% of them are pants because they don't fit the criteria"
In one case the Court was "persuaded" to hear the issue of conduct as a "preliminary issue" which was a 1 day hearing.......that helped listing as the DJ concluded it was not!!
You could seek directions that the issue of conduct is dealt with as a preliminary issue and be dealt with by written submissions attaching sworn statements which are to stand as evidence in chief -that way the DJ can conclude the relevance or not of allegations. [This is provided for in the Overriding Objective- see below]
In such cases it may still be nec to have a short hrg as parties may wich to cross examine witnesses. I would then ask for a direction that after the statements are filed the parties then have to give notice which Witnesses are to be called.
Now if the listing of that County Court is problematic it may be possible to request the Court manager to enquire of other County Courts within say 40 miles if a 4 day hrg can be arranged. [Again athe Overriding Oblective below if it is followed means the Court has a DUTY to actively manage cases and deal with matters expeditiously.......
Check the "Overriding Objective"
The overriding objective
1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Application by the court of the overriding objective
1.2 The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule subject to rule 76.2.
Duty of the parties
1.3 The parties are required to help the court to further the overriding objective.
Court’s duty to manage cases
1.4 (1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution (GL) procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.
I question therefore whether in reality the solicitors/DJ have discharged their duty.
Discuss with your solicitor/Counsel what I have said above:)
attilla, that's fantastic, thanks so much for that. I think you are right that my solicitor and the DJ have not appreciated the significance of the overriding objective. The ex has set out hopeless allegations of conduct in her form E and within a short time she has to serve a statement detailing all of her allegations. What I will do then is serve an application notice with her allegations and say to the judge that even if her allegations are taken at their highest and go unchallenged (which would remove the need for cross-examination to resolve factual disputes), they do not come close to being the very exceptional circumstances needed before conduct is relevant. I will then draw the judge's attention to the overriding objective and state how it is totally disproportionate to retain conduct as an issue and how he should therefore decide as a preliminary issue that conduct will not be relevant and relist the final hearing for one day. He may invite written submissions from the other side if he thinks this is necessary and then decide the application on the papers.