AS V CS (Private FDR Guidance) 19th April 2021, Mostyn J.
- Ordinarily, an application for financial remedy would proceed in accordance with FPR 9.15, in which the court would order an in-court FDR pursuant to FPR 9.15(4), and that fixture could only be broken by another court order or by the parties agreement, subject to a court order.
- In this case the parties agreed a variation which was accepted by the court. The court ordered that the first appointment would be dealt with by arbitration, and (a mandatory order) that the (private) FDR would take place on an appointed date (23rd October 2020) before a specified QC.
- Mostyn J said although there was no specific power to order the parties to attend a private FDR, there was power to disapply FPR 9.15(4). FPR 4.1(4)(a) empowered the court to make any order subject to conditions, so the order in 2 above was seen as a condition attaching to the order misapplying the standard court procedure.
- FPR 4.1(3)(o) empowers the court to take any other step or make any other order for the purpose of managing the case and furthering the over-riding objective.
- The parties then agreed that the private FDR be adjourned, that was subject to the court’s approval, which was given in an order recording when and in front of whom the private adjourned FDR should be held. (3rd March 2021).
- W wanted to ask questions of the SJE’s report, and unilaterally, sought from H that the 3rd march 2021 FDR be adjourned. H did not agree to an adjournment because the appointed QC adjudicator was not available for about 6 months, and so applied to have a court ordered directions hearing in June to be converted to an in-court FDR.
- Mostyn J said that in the in-court system a party could not unilaterally pull out of an FDR and the same applied to the private system. W assumed she could just pull out. H, too, thought W could pull out and applied to convert (misguidedly according to the judge) that the direction hearing in June be converted to an in-court FDR.
- He reminded practitioners that it is possible to have reasonable negotiations even where there is not a perfect fullness of disclosure, citing Thorpe LJ ‘there is no case that is so conflicted that it cannot be mediated’. The judge continued that private FDR’s are to be encouraged as they have a higher success rate than in-court FDRs.
- The judge offered this guidance to the profession; where an agreement is reached that a private FDR will be held, then an order should be made which:
- disapplies the the in-court FDR process
- requires the parties to attend a private FDR on a specified date
- provides that the date may only be altered by an order of the court (which may be by consent)
- Yet another example of this imaginative judge using the rules to practical effect.