The stages of the property and affairs pathwayProperty and affairs pathway:when application becomes contestedProperty and affairs pathwayProperty and affairs pathway:when application becomes contestedProperty and affairs pathwayProperty and affairs pathway:case management on allocationProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:dispute resolution hearingProperty and affairs pathwayProperty and affairs pathway:final hearingProperty and affairs pathwayProperty and affairs pathway:final hearingProperty and affairs pathwayProperty and affairs pathway:costsProperty and affairs pathwayProperty and affairs pathway:costsProperty and affairs pathwayProperty and affairs pathway:urgent applicationsProperty and affairs pathwayProperty and affairs pathway:urgent applicationsProperty and affairs pathwayProperty and affairs pathway:urgent applicationsProperty and affairs pathwayProperty and affairs pathway:urgent applicationsProperty and affairs pathwayProperty and affairs pathway:urgent applicationsProperty and affairs pathway
8.29The property and affairs pathway
1COPR Pr3.9 and Case Management Pilot PD. set out in the practice direction comprises four stages:
1)when the application becomes contested;
2)case management on allocation to the pathway;
3)the dispute resolution hearing; and
4)the final hearing.
When the application becomes contested
8.30The property and affairs pathway begins at a later stage than the personal welfare pathway, and has no pre-issue stage. Until it is contested all property and affairs applications will follow the procedure in chapter 7 at para 7.6 onwards. The first stage therefore commences when court is notified by one of the respondents or those notified returning a completed COP5 form indicating that the application is opposed or a different order sought. When this happens the case will be allocated to the pathway. The court will then serve on the applicant a copy of the COP5 form and an order allocating the case to the pathway.
Case management on allocation to the pathway
8.31At the second stage the papers are placed before a judge who will either:
a)list for a dispute resolution hearing; or
b)transfer case to the most appropriate regional court for listing of the dispute resolution hearing.
At this stage the respondent may also be ordered to file a summary of reasons for opposing the application or seeking different order, if this is not clear from their COP5.
Dispute resolution hearing
8.32The third stage, the dispute resolution hearing (DRH),
2Case Management Pilot PD 5.4. is a new concept for property and affairs cases. It is modelled upon the financial dispute resolution (FDR) hearing found in the family courts. The purpose of the hearing is to enable the court to determine if the case can be resolved and avoid unnecessary litigation, and by extension costs.
8.33The DRH will usually take place before a district judge. All parties must attend unless the court directs otherwise, and are to approach the hearing ‘openly and without reserve’.
3Case Management Pilot PD 5.4(3)(a). The content of the hearing is not to be disclosed and evidence of anything said or admission made at the hearing will not be admissible in evidence at a final hearing. The exception to this being at a trial for an offence committed at the hearing.
8.34Parties attending a DRH are likely to find that the process will involve negotiations between the representatives of the various parties, and unrepresented parties if there are any, coupled with the making of offers and counter-offers. Positions adopted and concessions made will be treated as being made ‘without prejudice’ to allow parties to make genuine attempts to reach an agreement.
8.35The parties will be expected to appear before the court when the judge will wish to be advised on the progress towards refining the issues and reaching agreement, and also the areas where this has not been possible. At the hearing the court will give a view on the likely outcome of the matter if it were to proceed to a final hearing. This allows the parties to consider the strengths and weaknesses of their respective positions and to make further offers in the light of this.
8.36If the parties are able to reach an agreement at this stage the court will make a final order if it is in P’s best interests to do so. If the parties are unable to reach an agreement at the DRH the court will make directions for further case management up to the final hearing.
It should be noted that DRHs are not an attended hearing for purposes of the Transparency Pilot.
4PD Transparency Pilot, para 2.2.8.37The court may turn to either the Civil Procedure Rules (CPR) or Family Procedure Rules (FPR) in cases where the COPR do not provide express guidance,
5COPR Pr2.5/COPR r9(1). and given that DRHs are modelled upon FDRs, we consider that it is likely that the courts will draw upon those parts of the FPR which apply to FDRs, Until and unless specific guidance is given, we suggest that parties preparing for a DRH should therefore turn to FPR rr9.14 and 9.17 as a guides. These set out the requirements on parties preparing for the first appointment and FDR appointment in family proceedings. The COPR do not provide for the equivalent of a first appointment but the court would be greatly assisted by the provision of the documents required by those Rules, including:
•a chronology;
•a list of the issues between the parties; and
•details of all offers and proposals, and responses to them.
These must be filed at court at least seven days before the hearing. The court would welcome the provision of these documents as part of a bundle which also includes copies of all the application papers and any torders.
8.38At the conclusion of the DRH, any documents containing details of the offers and proposals, and any filed documents referring to them, must, at the request of the party who filed them, be returned to that party and not retained on the court file. This is not express from the provisions of the Case Management Pilot, but we suggest must flow from the analogous position prevailing in relation to FDRs.
6See FPR r9.17(5).8.39If an agreement is not reached at a DRH, a final hearing is not inevitable. It is possible for the parties to go away and reflect upon the indication given by the court and to make other offers before reaching a final hearing. Sometimes parties need more time than is available in the day to reflect upon the developments at the DRH.
8.40In a case where one party considers that an offer made at the DRH was unreasonably refused, there is considerable merit in that offer being repeated following the DRH in correspondence reflecting the terms of the offer made at the DRH. That offer
7Which could be made on a without prejudice or an open basis depending on the circumstances (the former meaning, in essence, that it could not be put before the court until the conclusion of the substantive proceedings). cannot refer to the contents of the negotiations at the DRH. However, if, at the conclusion of the proceedings, the court reaches a conclusion that is broadly in line with (or, where relevant) more favourable (in whatever way) than the offer, it would then be entirely proper to refer to the offer when submissions are made as to costs (see further chapter 16).
Final hearing
8.41The final hearing will be listed before a different judge to that who heard the DRH. This is a necessary consequence of the nature of a DRH, but we anticipate that this may cause practical difficulties in some areas where there are only very few ‘ticketed’ Court of Protection judges.
8.42The final hearing will proceed in accordance with the directions given at or following the DRH. The applicant will usually be required to prepare the bundle for the hearing, although the court may make a different order to vary this if the applicant is unrepresented. For more detail on preparing for and conducting the final hearing please see chapter 10 below.
Costs
8.43At the conclusion of the case, whether by consent or by judicial decision, the court will deal with costs. For a full discussion of costs, see chapter 16.
8.44Parties who proceed to a final hearing should be clear as to the potential costs implications and prepare accordingly. Parties who proceed to a final hearing must be sure that their opposition is objectively in P’s best interests.
Urgent applications
8.45Urgent applications in property and affairs matters are rare, and the court will only treat a matter as urgent if P’s life expectancy is very short and the matter must be resolved before their death, for example to make a statutory will.
8.46The Case Management Pilot PD sets out
8Case Management Pilot PD para 5.6. how the court will approach a property and affairs application which is urgent from the outset. Parties are reminded of the requirement in the COPR to co-operate.
9COPR Pr 1.4(2)(c). The applicant must include the following with the application papers:
•an explanation of why the case is urgent and what the consequences will be if the case is not treated as urgent;
•if the application is made without notice, an explanation why it was not possible to make the application on notice, and what the consequences would be if the application were to proceed on notice and the order or an interim order were not made immediately;
•confirmation of any specific deadline;
•information identifying and separating the issues which are urgent from those which are not urgent.
8.47The court will consider the papers and on issue will, if the matter appears or is confirmed to be contentious, either order:
a)the case will proceed to a DRH but listed urgently; or
b)the case may be listed for an interim hearing to decide the urgent matter or matters in the case, and the court can decide at that hearing whether any further hearing is necessary and if so, whether that further hearing should include a DRH or not.
8.48Applications which are not contentious but are urgent can be dealt with on the papers if all the relevant consents have been received by the court.
8.49Sometimes applications are not urgent at the time they are commenced but become so as matters proceed. This is especially likely to be the case in statutory will applications where P’s health may decline suddenly making the issue of their will more urgent. Where this occurs it is important to advise the court and other parties of the change in circumstances as soon as possible and to share any available medical evidence. The court will then be able to take steps to consider the matter urgently and decide if a final order can be made or if a hearing should be listed urgently.