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Rachel Osgood | 21st February 2014

Mandatory precedent orders – where’s the fun in that?


Rachel Osgood | 21st February 2014

Mandatory precedent orders – where’s the fun in that?

In his View from the President’s Chambers in July last year, Sir James Munby announced that “Inordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised”.  To this end, he appointed a small working group, under the direction of Mostyn J, to prepare the requisite standard orders with a view to having them in place and mandatory by April 2014.

Of course, we’re all used to standard precedent orders.  I suspect that we all place great reliance on our well-thumbed copies of Resolution’s precedent clauses for consent orders – I know I do.  In fact, I can’t imagine that I would attempt to draft an order without my copy well and truly to hand.  The beauty of it is that someone else has done all the thinking.  Not only that, much of the drafting is unlikely to be contentious, because everyone else is using the same precedents.  To that extent, discussions during the drafting process are likely to be substantive in nature, rather than being concerned with the nitty gritty of the drafting itself.

I wonder therefore what Sir James means, when he refers to “inordinate amounts of time and money”.  I consider the drafting of a final order to be an extremely technical and skilled task, notwithstanding the great assistance provided by Resolution’s precedents.  It’s vital that the final order accurately reflects the agreement and is enforceable.  To be able to prepare such a document takes training, experience and – yes, time.  Just as I can’t imagine attempting the task without my precedent book in front of me, so I can’t remember a time when I haven’t had to add to, amend, deviate from, elaborate upon or delete bits of, that venerable tome.

Of course, there are those orders which are more straightforward than others; where perhaps the only operative clauses are the clean break provisions.  But even in those cases, it might be preferable or even essential to preface the clean break with a series of bespoke recitals, explaining the rationale behind the clean break.  To do otherwise might, in some cases, render the clean break vulnerable where the bare facts do not on their face explain why it is appropriate.

I had better declare an interest:  I love drafting.  It’s a sad truth, but to me, drafting a complex final order is a source of true satisfaction.  I can’t help but feel that to impose mandatory clauses in a kind of catch-all, dumbing down, cost-cutting frenzy might be a bit of a mistake.  Still, we must all move with the times, and with that in mind, I took a look at the draft precedent clauses, which you can find here on the family law hub:

Lo and behold, they look somewhat familiar.  They surely bear more than a passing resemblance to the Resolution precedent clauses held beloved by so many for so long.  Nothing to fear then.  Except, as I say, the presumption that even these well-crafted, tried and tested precedents will fit every case without deviation:  they won’t.

The good news in all of this is that the precedents won’t become mandatory in April after all.  Somewhat testily, in his 10th View, Sir James says, “May I take this opportunity of making clear that this important work has not been put on hold indefinitely. There has merely been a necessary slowing of the tempo, whilst even more pressing matters take priority. Implementation may be staged and in any event will not take place until after April 2014”.

I have no objection to precedent clauses being made widely available for the continued use by professionals and by increasing numbers of litigants in person.  My objection is to their mandatory imposition, when one size does not fit all and each and every case deserves and requires detailed consideration of its own facts.

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