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Chapter 8 – FDRs PFDRs and Arbitration – Alexander Knight

Alexander Knight – Senior Associate Barrister
Expatriate Law

FDRs, private FDRs, and arbitration in financial remedy matters

The standard procedure applicable for financial remedy applications in England and Wales principally involves three sequential court hearings:

  1. The first appointment
  2. The FDR (financial dispute resolution appointment)
  3. Final Hearing

There can be deviations from the above. The fast-track procedure may apply, providing different timescales leading up to the first hearing and consideration being given at that hearing as to whether the court is able to determine the application and, if not, the steps moving the matter forward (FPR, rule 9.20). The first appointment can, where appropriate, be utilised as the FDR (effectively reducing the need to have two separate hearings). The court may dispense with an FDR altogether if there are exceptional reasons for doing so. Further hearings may be required to deal with maintenance pending suit, legal services payment orders, or third party interests by way of some examples.

The parties can choose to opt for out-of-court methods to resolve their disputes, including private FDRs and arbitration. The parties may settle at any time in the process.

Leaving aside the various case-specific permutations, the above three hearings constitute the standard procedure when it comes to financial remedy hearings in England and Wales.

The first appointment

At the first appointment, the court will consider whether any further information and/or expert evidence is required in order for the matter to proceed. As above, the court may utilise the hearing as an FDR where appropriate.

In respect of attending such hearings remotely, the President of the Family Division provided “a steer” and description “of the general direction of travel” (recognising that the circumstances around each case and each local court centre will vary) at the FLBA National Conference in October 2021 commenting that “a straight-forward directions or case management hearing is likely to be appropriate for a remote hearing.”

FDR

The FDR appointment is a chance for the parties to use their best endeavours to reach agreement on matters in issue between them. The primary goal is therefore to reach agreement and conclude the litigation. Such an outcome, of course, brings multiple benefits including:

  • Saving the parties further costs by avoiding further litigation/hearings
  • Achieving an outcome that both parties consent to
  • Saving the parties the stress of further litigation

At any FDR appointment it is up to the parties to agree a settlement; the judge cannot impose a settlement on the parties (although if the parties are close to reaching settlement the judge may try and encourage the parties to reach settlement by directing a further FDR at a later date or encouraging out-of-court dispute resolution, but generally speaking if an FDR does not produce settlement the matter will be listed for trial).

The FDR appointment itself was developed as a means of reducing the tension which inevitably arises in family disputes and facilitating settlement of those disputes. Both parties must personally attend the FDR appointment unless the court directs otherwise. In order for the FDR to be effective, parties must approach the occasion openly and without reserve. The court will expect to see offers and proposals being made by the parties with proper consideration being given to receipt of the same. It can also be noted that the judge hearing the FDR appointment will have no further involvement with the application, other than to conduct any further FDR appointment or to make a consent order or a further directions order. The judge will give the parties an indication as to what they feel a likely outcome may be in their particular matter with the aim of assisting discussions and negotiations. The judge’s indication cannot be referred to except in without prejudice discussions/correspondence, and (save in very limited circumstances) the FDR is to all extent and purposes a without prejudice hearing.

The hearing is usually listed for an hour. However, it not uncommon for parties to be at court all day (note that sometimes the matter may have an afternoon listing). The parties can also (time permitting) request to go back into court for a further indication on, say, a further issue that has arisen.

What can be noted is that there is no one-way approach for dealing with such hearings. Sometimes the parties will give oral submissions and the judge will provide an indication having heard such oral submissions along with any written submissions provided. Sometimes the hearing will take the form of discussions following written submissions.

As set out above, the FDR provides the parties with an opportunity to settle their dispute on their own terms.

In circumstances where parties are based abroad, requests may be made in advance for remote or hybrid attendance. Indeed, it is understood that there are senior members of the family court who view such circumstances (being based abroad) as likely to be a reason for a remote or hybrid FDR as matters stand and do not anticipate difficulties in respect of such requests. Final hearings will be considered on a case by case basis.

Private FDR

A private FDR takes the place of a court-based FDR. It allows the parties to pay for a financial remedy specialist/evaluator to act as a private FDR judge. The evaluator may be a solicitor, barrister or a retired judge.

Again, the primary goal is for the parties to reach agreement/settle the dispute.

Opting for a private FDR brings with it a number of advantages, and potential disadvantages, including (inter alia):

Advantages

  • A private FDR can take place at a convenient time and place for the parties (including remotely)
  • A full day can be set aside to maximise the prospects of reaching settlement
  • The parties are able to choose the evaluator
  • The evaluator will be available to the parties throughout the private FDR
  • The evaluator should have the time to consider the matter fully, giving the parties confidence in their indication
  • It removes the risk of court adjournments, judges not being available, etc.
  • Compared with the potential delays from court listings and an FDR judge potentially having to juggle a number of matters in their list with potentially limited time to read into the matter, it potentially provides the parties with less waiting time, more certainty that the hearing will take place and an evaluator who should have the time to consider the matter fully
  • It has been stated that anecdotal evidence suggests that private FDRs have a very high settlement rate

Disadvantages

  • The evaluator will charge a fee, adding a layer of legal cost
  • There are currently no formal rules governing private FDRs and evaluators are not subject to any minimum qualification or training (however, as above, the parties can, of course, choose their evaluator)
  • The evaluator cannot give directions for trial in the event that settlement is not reached, and they cannot make a final order (it will be necessary to submit any draft consent order to the court for approval and in the event that settlement is not reached it will be necessary to apply to the court for directions)

A directions hearing may be listed shortly after the conclusion of the private FDR with such hearing being vacated in the event of an agreed order being submitted by the parties. Alternatively, the matter may be adjourned generally while the private FDR process takes place.

Recent guidance has been provided in AS v CS (Private FDR) [2021] EWGC 34 at [20] that “where an agreement is reached that a private FDR will be held then an order should be made which (a) disapplies the in-court FDR process, (b) requires the parties to attend a private FDR on a specified date, and (c) provides that the date may only be altered by an order of the court (which may, of course, be made by consent).”

As above, a private FDR provides the parties with an opportunity to settle their dispute on their own terms.

Arbitration

Arbitration offers a further out-of-court forum in which parties can appoint a qualified person to adjudicate over their dispute.

When dealing with arbitration in financial remedy matters in England and Wales, consideration will be given to The Arbitration Act 1996 and the IFLA Arbitration Financial Scheme Arbitration Rules.

There are various potential advantages and disadvantages to opting for arbitration including (inter alia):

Advantages

  • An arbitration can take place at a convenient time and place for the parties, and can, if appropriate, be decided on paper without a formal hearing
  • It can provide the parties with speed in resolving their dispute
  • It removes the risk of court adjournments, judges not being available, etc.
  • It can offer privacy and confidentiality (save in certain circumstances)
  • It can provide the parties with flexibility, and the parties may adapt the procedure to suit their needs (the rules contain both mandatory and non-mandatory provisions)
    • It may assist matters in which costs may become disproportionate to the sums in dispute

Disadvantages

  • The arbitrator will charge a fee, adding a layer of legal cost
  • Implementing an arbitration award by way of a consent order will require an application to the court. The question of challenging arbitral awards/implementation/a party refusing to consent to an award, along with relevant procedure, has been looked at in recent case law. Recent guidance has been provided in Haley v Haley [2020] EWCA Civ1369 and subsequently A v A (Arbitration: Guidance) [2021] EWHC 1889 (Fam).

Conclusion

The above provides a quick snapshot of some (but certainly not all) of the choices available to parties. There may be specific and/or additional matters that make a case more suited to one avenue rather than another. It is, of course, advised that parties wishing to consider their options and the potential avenues available to them take appropriate legal advice.

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