Issues for trail: to agree what you can’t agree

Definition of issues

One of the difficulties with family proceedings is that most of the statements of case or pleadings (as they used to be called) – where there are any such documents at all – must be set out by parties on prescribed forms. There is no clear time under the rules where a party is required, to define what the issues in the case are, save in financial provision proceedings (ie to provide ‘a concise statement of issues between the parties’ (Family Procedure Rules 2010 (FPR 2010), r 9.14(5)(a)).

By contrast in civil proceedings the rule is that a statement of case must at the outset of proceedings define the issues for trial. Thus in UK Learning Academy Ltd v Secretary of State for Education [2020] EWCA Civ 370 David Richards LJ said of an appeal which the Court of Appeal was dealing with:

'[47] I would add here that I endorse the view expressed by the judge to the parties at the trial and repeated in his judgment at [11] that the statements of case ought, at the very least, to identify the issues to be determined. In that way, the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law and the evidence….'

This statement emphasises the central question for all parties’ legal representatives (if any) and for parties in person (if unrepresented): what are the issues in a case? That is, what are the issues which the court is being asked to resolve? It is the lawyer’s job to put the case together (ie marshall the evidence). By definition to do this the issues must be defined; for it is probably the most important rule of evidence, that only evidence which is relevant to an issue is admissible. (For a recent example of evidence being excluded and edited on grounds of relevance see Johnny Depp defamation action, Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 1237 (QB) (18 May 2020), Nicol J.) If evidence is called or otherwise adduced before the court and the party calling it does not know to what issue it is addressed, it probably should not be allowed in.

In family cases all that is more easily said than done. In most other types of case all the things on which the case is based – the evidence – is in the past: that is, the facts which make up the alleged tort or breach of contract or which form the crime charged. In many family cases there are rarely what can easily be described as pleadings. Some of the facts which the court will hear about, will have occurred or have come to light since the proceedings have commenced or will be derived from disclosure of material which was not known of when proceedings were issued. And some of the information required by the lengthy court forms is not relevant to any issue anyway.

Crystallisation: to agree on what you disagree

One of the first things I wrote for publication was with Judith Parker QC (as she then was). It was a short, probably quite naïve, note in 1990 about ‘crystallisation’ of issues. We argued that there must be a point, shortly before any final hearing, when the parties must be able to define the issues. Would it help if the court required a formal statement be filed, setting out what the issues are and that parties (if they can), or their representatives, speak to one another to agree in writing what the issues for trial are.

When teaching financial relief procedure and practice, I used to suggest that a good time for definition of issues was at the end of any Financial Dispute Resolution or other pre-hearing setting down appointment: that is when a case was to be listed for hearing. If I were a district judge doing such an appointment I would not let parties leave the court building till they had given me an agreed written statement of what they said were the issues to be resolved: that is issues of fact, of law and of distribution of assets, maintenance etc. For there must come a time in any litigation where the parties can agree on what they disagree: ie what the court must resolve for them. I know one or two district judges have taken up the idea of the agreed pre-hearing statement of issues.

From there it is a short step for the parties to ensure they have the evidence needed to prove their respective cases, and on whom any burden to prove particular facts in issue; or as David Richards LJ says in UK Learning Academy (above) (even in the absence of formal pleadings as in so many family cases):

'…the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law and the evidence…'

Without a clear view of the issues in a case, reviewed by parties throughout the progress of a case, it is difficult to see how they can properly prepare the evidence for an effective final hearing; and be ready with any argument on law. Without that review of the issues the party, or their legal adviser, cannot know if they are properly prepared to deal with points of fact and of law which need to be resolved.

David Burrows

Written by David Burrows

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