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V v W [2020] EWFC 84 – party can't get disclosure from FDR

Posted on 03 February 2021

In financial remedy proceedings, there had been a dispute regarding the value of a business (S), held by the husband (H). An expert report was obtained, with H to pay the fees (some £75,000). The expert subsequently sued H for the unpaid cost of the report. H disputed that he should be required to pay, asserting that the report had been misleading (later amended to state that it had been useless). H wanted to rely upon what was said at the financial dispute resolution hearing  ("FDR") in support of his position, and sought permission to rely on a transcript of the Judge's indication and documents used at the hearing.

The court refused the husband's application. Sir James Munby noted that the FDR is a compulsory part of the financial remedy process. It was fundamental that the FDR is a confidential process. He noted that the press was not permitted to attend the FDR and that the Judge hearing it could have no further involvement with the case. He quoted PD9A, para 6.2 of the Family Procedure Rules 2010, which recorded that "evidence of anything said or of any admission made in the course of an FDR appointment will not be admissible in evidence, except at the trial of a person for an offence committed at the appointment or in the very exceptional circumstances indicated in Re D.” (Re D dealt with child protection issues). The husband sought to argue that the words “will not be admissible in evidence” should be read as meaning “will not be admissible in evidence in either the financial proceedings or those concerned with the same subject matter.” Sir James Munby rejected this interpretation. He considered the inclusion of the words from “except” to the end to show that the “evidence” referred to is not limited to evidence in proceedings relating to the same matter, or even evidence in other family proceedings, but extends to e.g. evidence in criminal proceedings.

Claire Yorke says:

"Sir James Munby reiterated the absolute nature of the confidentiality of the FDR. While he noted that the consequence of his interpretation was that an unhappy litigant, dissatisfied with the performance of his own counsel in the FDR would be unable to refer to anything said during the FDR when bringing a negligence claim against his counsel or making a complaint to the Bar Standards Board, Sir James considered that this was justified to preserve the confidentiality that was fundamental to the financial remedy process."

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