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AS v CS (Private FDR) [2021] EWFC 34 – party cannot unilaterally pull out of private financial dispute resolution

Posted on 29 July 2021

The parties were engaged in financial remedy proceedings. A date for a private financial dispute resolution (FDR) appointment was fixed in October 2020. The parties subsequently agreed that the FDR should be adjourned and the court fixed a new date in March 2021. The respondent then "unilaterally purported to cancel" that private FDR and stated that the earliest new date for a private FDR would be in the autumn. As usual, a directions hearing had been listed to take place after the proposed private FDR. The applicant applied for an order that that directions hearing (listed in June 2021) should instead be used as an in-court FDR.

Mostyn J directed that the application would be dealt with on paper. He subsequently ordered that the private FDR in March 2021 should proceed. The respondent would need to apply to the court to adjourn the private FDR. Mostyn J set out his view that, had the FDR been listed as an in-court FDR, that fixture could only be broken by agreement or court order. In the present case, the parties had agreed a variation to the prescribed procedure. That variation had been accepted by the court. Mostyn J had directed that a private FDR would take place in October 2020. Although there is no power in Part 9 of the FPR 2010 to order that the parties should attend a private FDR, he considered that the court could disapply FPR 9.15(4) (providing for the usual listing of an FDR). Moreover, pursuant to FPR 4.1(4)(1), the court could make an order conditional. He considered that his direction requiring the parties to attend a private FDR should be seen as a condition of his having disapplied 9.15(4). The parties were bound by it and could not unilaterally pull out of a private FDR. He also gave guidance on how a private FDR should be provided for in a court order:

"For the future, 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)."

Sandra Davis says

A number of recent decisions by the High Court have demonstrated that Judges are no longer willing to let parties avoid engaging in negotiation. Whilst the use of private FDRs has been welcomed, litigants will not be allowed to play the system. Where they opt for a private FDR, they should expect to be bound by that date. Tactical attempts to delay are unlikely to be tolerated by the court.

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