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8.19Careful consideration should be given to the available evidence when considering whether to contest an application, or to suggest an alternative order. In property and affairs cases, which commonly concern the management or movement of money within families it is important for each party to remain focused on what is in P’s best interests and what is realistically achievable. Any party considering contesting an application should ensure that they are familiar with and adhere to the overriding objective
1COPR Pr1.1. which places emphasis on controlling costs through compliance with procedure in order to resolve issues quickly and fairly. Parties have explicit duties
2COPR Pr1.4. designed to further the overriding objective. For cases falling within the Case Management Pilot, there are additional duties imposed upon legal representatives and unrepresented litigants;
3COPR Pr1.5 and 1.6; see further chapter 11. and even in cases falling outside the Pilot, it is likely that the court will look to those duties as the ‘gold standard’ by which to judge their conduct (see further paras 4.101–4.103 as to the scope of the Pilot).
8.20The grounds on which an application may be contested will depend upon the facts of the case and the evidence available. For details about a range of specific applications and situations see chapter 7.
8.21In property and affairs cases, if there is a dispute, it is often likely to be between family members, rather than family members and a statutory body. In such cases – and especially given that the general rule as to costs is that the costs (of all parties) will be payable out of P’s estate
4COPR r156; see also chapter 16. – the temptation must be resisted for respondents to oppose applications on the basis of a point or points that do not relate to the issues in the case and which will serve no purpose but to increase the cost to P. The court will primarily be concerned with P’s present circumstances, and the resources of the court do not exist to allow the ventilation of unrelated allegations of the nature that can, sadly, often arise in the case of family disputes. Parties must remain focussed on the issues that are before the court and the relevance of the information they wish to put before the court both in the application and in any potential response.
8.22Parties should maintain a flexible approach, focused on P’s best interests and avoid entrenched positions as far as possible. This allows alternative options to be explored by way of mediation and other forms of ADR (see chapter 19), and may help to avoid incurring the expense of attended court hearing(s).
8.23Advisers should, however, be alert to the danger of attempting to persuade parties to take an approach that fundamentally they do not agree with.
8.24If the parties are able to reach a negotiated way forward that represents a compromise between the position advocated by the applicant and that desired by the respondent(s), the court should be notified and a consent order submitted, with each party or their legal representative confirming their consent to the order as agreed: see further para 10.48.
8.25If the parties cannot agree a negotiated way forward within a reasonable timescale, the court will proceed to determine how best to put itself in a position to reach a conclusion. This means that the case will usually proceed on the basis of directions given when the case becomes contested, allowing the parties time to attempt to reach a negotiated agreement before a final hearing is listed.