The FDR: An Integral Part of the Court Process

The Christmas holiday is looming, and if you’re anything like me, you’ll be counting down the days, tying up loose ends to get everything in order before putting your out of office on, and enjoying a well-earned break with family and friends. 

For that reason, I’m going to keep this article short and concise. 

Financial Remedy practitioners will be familiar with the standard track procedure following an application by Form A for financial orders; A First Directions Appointment (“FDA”), followed by a Financial Dispute Resolution appointment (“FDR”) or Private FDR, and thereafter a Final Hearing if matters have not been capable of settlement. 

Following an FDA, the court “must” direct the application for a listing for FDR, unless the FDA was utilised as an effective FDR, or there are “exceptional reasons” which make an FDR inappropriate.[1] The commentary to the Red Book reminds us “this rule reflects … the importance of the FDR in resolving disputes.” As to what are exceptional reasons, little insight is offered in the Red Book, save that the power to bypass an FDR and proceed straight to Final Hearing should be read in accordance with the Overriding Objective[2] when exercising or interpreting any rule. 

In a short and typically erudite judgment (GH v GH [2024] EWHC 2547 (Fam)), Peel J has confirmed the importance of the FDR. Allowing an appeal against a decision to dispense with an FDR because (i) an ongoing factual dispute as to W’s earning capacity and (ii) W’s position had not crystalised so as to enable a successful FDR, Peel J notes:

[5] The FDR (which for these purposes includes the increasingly popular Private FDR) is an integral part of the court process. Its value has been proved time and again. Its without prejudice status allows the judge to look behind the litigation posturing which is so familiar in these cases and give clear, robust views. Anecdotally, it facilitates settlement in a significant number of cases. It is not only relatively straightforward cases which are susceptible to settlement at FDR. So, too, are complex cases. In my personal experience, even the most intractable case can yield to settlement at the FDR. The purpose of it is to enable the parties to hear (probably for the first time) an independent evaluation of the likely outcome, and the risks (in terms of costs, uncertainty, delay and emotional toll) of continued litigation. The FDR judge is there to tell the parties if their proposals are sound or devoid of merit, or if particular points or arguments are or are not likely to find favour at trial. It is often those hard cases where one or other party appears utterly intransigent that the FDR judge’s indication and observations can be of greatest utility. The FDR judge is well able to deal with factual issues (such as, in this case, W’s earning capacity), not by determining them but by expressing a view as to how they appear on the available evidence and how relevant they are. The FDR judge is also well able to give a clear overview even if (as the judge assumed to be the case here) one or other party’s position is not fully crystallised.

Peel J rightly comments, that the FDR is often the first occasion the parties receive an independent evaluation as to the strengths, weaknesses and risks of their case. I would add that this is likely even more important following the advent of the Efficiency Statement in January 2022[3], which introduced a standardised “Fast Track” procedure for FDAs, often resulting in directions being agreed on paper. The FDR is often, therefore, the first occasion which the parties to the proceedings come before the court, have meaningful, face to face, discussions with each other, and may, for the first time, understand the gravity of the litigation. 

As to exceptional reasons” which make an FDR inappropriate, Peel J says:

It is very hard to envisage a situation where the FDR should be dispensed with. Perhaps if one party has not engaged at all, including not attending court hearings, and has stated that they will not attend the FDR. No doubt there are other situations which might justify proceeding from First Appointment to final hearing without the FDR. But these will be very few and far between.

Following Peel J’s judgment, it is likely only in the most unusual of circumstance, or the most egregious instances of non-compliance/engagement, that it would be appropriate to bypass the FDR and proceed straight to a Final Hearing. 

That said for those seeking a quick resolution to their proceedings, waiting for a Court FDR can add considerable delay in progressing matters to a resolution. It is unfortunate, that despite a wealth of data on disposal times for children’s proceedings[4], the MOJ produces no statistics as to the average time for disposal of a financial remedy case. However, those in major court centres such as London, Manchester, and Liverpool will know it can take many months for a listing for FDR, often increasing costs and emotional strain on the parties. 

Private FDR’s (“PFDR”) can reduce that delay and allow greater flexibility for parties to select their venue, listing date, and FDR evaluator. Whilst it may be thought the costs involved outweigh those in waiting for a court FDR, delay often results in increased correspondence, and at times interim applications occasioned by the delay, which may make a PFDR a more cost effective way of settling proceedings, rather than simply waiting within the court list. It is worth remembering, PFDRs are encouraged by the Efficiency Statement, and a renewed focus on NCDR may be a powerful tool of encouragement where one party is reluctant to engage in a PFDR (which failure to engage may be considered in costs following the amendment at FPR 2010 r28(7) in April 2024). 

Deans Court Chambers can facilitate and host PFDRs and have a range of practitioners available to act as the PFDR evaluator, including Edward Boydell KC, Susan Grocott KC, and Susan Deas. For more information about PFDRs and how Deans Court can assist, please contact clerks@deanscourt.co.uk.

All that’s left, is for me to wish you a peaceful break, and all the best for 2025. 
 

[1] FPR 2010 r9.15(4)

[2] FPR 2010 r1.2

[3] https://www.judiciary.uk/guidance-and-resources/notice-from-the-financial-remedies-court-4/

[4] https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2024/family-court-statistics-quarterly-april-to-june-2024#statisticians-comment