What can a District Judge NOT do at a Financial Dispute Resolutions in the Family Court?

What can a District Judge NOT do at a Financial Dispute Resolution in the Family Court?

it is now well established that an fDR can only lead to one of three results: 1. Settlement (by Draft Order or heads of Agreement) 2. Adjournment 3. failure to settle and listing for trial.

However, given the hugely overburdened administration of the court system, I am sure I am not alone in finding courts listing contested issues for hearing at the same time as the FDR at the last minute, leading to confusion and potentially wasted hearing time.

The basic rule is that ONLY the DJ hearing the FDR should see the FDR bundle, which is delivered to court a couple of days earlier for perusal. This is a without prejudice document which must be destroyed or returned to the parties after the hearing.

Unsurprisingly this is particularly difficult when dealing with a Litigant in Person, especially when they are the ones making the contested application and expect that the court will hear this on the same day and before the same judge as the FDR, because the court have listed both together.

Unfortunately I have on occasion been faced with a grumpy DJ who also thinks they should be able to deal with both – which is even more difficult.

It is helpful to have chapter and verse to clarify this issue quickly and avoid either a contested hearing which either side might apply to set aside for ultra vires, or simply a waste of court time while procedural points are clarified.

1. FPR r9.17(2) states that: (2) The judge hearing the FDR appointment must 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.

R9.17(9) goes into more detail about what directions mean: (9) If the court does not make an appropriate consent order as mentioned in paragraph (8), the court must give directions for the future course of the proceedings including, where appropriate –(a) the filing of evidence, including up to date information; (b) fixing a final hearing date; and (c)any necessary directions for the filing of open proposals for settlement under rule 9.27A or rule 9.28.

2. This was further explained out by the Court of Appeal in Myerson v Myerson [2008] EWCA Civ 1376, [2009] 1 FLR 826: The judge involved in the FDR between the parties, who had been armed to conciliate by the provision of all the privileged communications, could thereafter do only one of three things: set up a further FDR; make a consent order; or make an order for further directions, practically speaking directions for trial. While any disagreement between counsel as to how the agreement between the parties should be expressed could clearly be referred to the FDR judge for determination, if there were subsidiary or peripheral issues to be agreed or determined by the court in default of agreement, the dispute must be listed before another judge.

3. In Myerson there had been an agreement reached at an FDR. Quantum and timing of lump sums was agreed but the security for those lump sums had not been. Although only a subsidiary point, the FDR judge could not decide that issue in default of agreement. The Court held that there is no difference in principle between a Judge deciding a dispute following a complete failure to agree or a dispute of substance following a partial agreement (para 58).

4. Although considered possible in Myerson, it is not possible for the parties to waive this bar on the FDR judge’s future role: Shokrollah-Babee v Shokrollah-Babee [2019] EWHC 2135 (Fam).

t: 01386 555 114 pennyraby@harmony-house.co.uk Penny Raby & Co, Harmony House, 7-9 Church Street Pershore, Worcestershire WR10 1DT