I was irritated on behalf of my client the other day to have spend the better part of a morning negotiating a consent order at a first hearing on a contact application in the FPC only to find we were before a legal adviser with no access to a bench who refused to make our order for lack of powers. Getting that order agreed had been like pulling teeth and it was a very unsatisfactory state of affairs for two privately paying clients.
But it turns out the Legal Adviser was right, much to my chagrin. FPR 2.6 gives a single justice power to make interim s8 orders by consent BUT ONLY where such an order has previously been made and is in the same terms i.e. the jurisdiction is on a renewal basis. The Justices Clerks Rules 2005 give legal advisers the powers contained in FPR 2.6 (subject to some exceptions).
In most cases it isn’t an enormous problem, because a bench are usually in the building and can be consulted and wheeled in if necessary. But at a first hearing the Legal Adviser is in essence prohibited from doing anything unless he can get a rubber stamp from the bench. Which rather begs the question: What is the point of us all rocking up to court? Not efficient or speedy, and would haven utterly hopeless had we been in dispute about the way forward!
The parties in my case were told rather glibly that of course nothing could be done today, it might get approved next week sometime, but the bench might decide they didn’t agree with it (this was rather unlikely since it was a straightforward enough order, so it served only to cause anxiety).
Down the rabbit hole…