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David Burrows examines financial provision costs rules & vires of the rule makers
- This article questions whether the Family Procedure Rules Committee may have exceeded its statutory powers in creating the financial remedy costs regime in FPR 2010 r 28.3, particularly the presumption against costs orders and the exclusion of Calderbank (without prejudice save as to costs) offers, because the rule-making powers granted by the Courts Act 2003 do not clearly permit alteration of substantive law.
Twenty-five years on, the trouble the then Lord Chancellor, Lord MacKay, went to to ensure that his Civil Procedure Act 1997 (CPA 1997) contained the powers he wanted it to have was considered in the article ‘Reflections on the Burrows amendment…’, 171 NLJ 7951, p11. Then (late 1996), it was assumed that family proceedings would still be regulated by civil proceedings rules (ie the replacement of Rules of Supreme Court 1965 (RSC) and County Court Rules 1981) in the Civil Procedure Rules 1998).
This article asks: what powers (vires) do family proceedings rule makers have to make the financial provision
