Ancillary relief practitioners in recent years have been prepared for the FDR appointment in ancillary relief proceedings. With a “cards on the table” approach, the parties exchange confidentiality before the FDR judge for the expectation of a speedy and cost-effective resolution of their financial affairs.
Parties attending the FDR appointment must use their best endeavours to reach agreement, with the assistance of the judge if needs be, on the matters in issue. The hearing and, therefore, any proposed offers are treated on a strictly without prejudice basis, so as to encourage settlement. The Family Proceedings Rules provide that the judge conducting the FDR must have no further involvement with the application, other than to make a consent order, conduct any further FDR appointment or a further directions order.
However, what is the role of the judge if there is substantial agreement on the material terms but something of the detail of implementation is unresolved?
The Court of Appeal in the recent case of Myerson v Myerson [2008] EWCA Civ 1376 considered the case where the paying party to an FDR appealed over a disagreement about security for a lump sum to be paid in instalments. Clearly, the paying party considered that the FDR judge would be unlikely to treat his request for variation favourably given the knowledge gleaned in the FDR hearing. The receiving party wished for the FDR judge to continue to deal with the matter as she was fully apprised of the issues.
The Court of Appeal was sympathetic to the paying party. The Court held that there was no final agreement and thus the ancillary relief proceedings were still unresolved.
Thorpe, LJ held that: ‘the underlying policy… is clear. Litigants distrustful of each other and made anxious by the complex tactics of contested litigation must be confident that conciliation within the court proceedings guarantees them... confidentiality’.
Given the aspect of confidentiality the Court of Appeal affirmed that issues of enforcement should be listed before another judge. Similarly, subsequent applications to vary or set aside the consent order achieved at the FDR appointment must be listed before a different judge.
Hence, unless an FDR is comprehensively and fully determined it remains open to a party to re-litigate the matter before a different judge with the hope of a better result.
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