The High Court heard an appeal against interim orders, one of which dispense with Financial Dispute Resolution (FDR) and proceed straight to a final hearing. 

Background:

Various interim orders have been made in the course of financial remedy proceedings between a Wife and Husband. One of those orders was to dispense with a Financial Dispute Resolution ("FDR") and proceed straight to a final hearing, which has not yet taken place. The judge seemed to have taken the view that the FDR should have been dispensed with for two reasons:  there had been an ongoing factual dispute about the wife’s earning capacity; and the wife’s position had not crystallised so as to enable the FDR process to be successful. One party appealed the decision. 

Decision: 

The High Court disagreed with the order and noted that the parties should not have been dispensed with the Financial Dispute Resolution (FDR). Mr. Justice Peel first reminded us of the relevant paragraphs in the Financial Procedure Rules (FPR) especially FPR 9.15(4)(b). The Court reiterated that the FDR is an integral part of the court process which has proven very valuable in many cases. “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.”

Moreover, FDR judges are able to deal with factual issues, such as the wife’s earning capacity. “The essential facts and resources were clear and there was no impediment to the parties making offers, or to the court giving a firm steer.” Moreover, it was not clear whether any attempt at Non Court Dispute Resolution had been attempted, nor had the parties attended round table meetings, nor had they even exchanged offers, all of which made the need for a FDR all the more pressing. Therefore, the parties were directed to attend a court FDR.

Implications:

This decision is on a narrow but important point and clarifies that Financial Dispute Resolution procedures should not be bypassed. As the Judge noted “it is very hard to envisage a situation where the FDR should be dispensed with.” In his opinion FDR could perhaps be bypassed “if one party has not engaged at all, including not attending court hearings, and has stated that they will not attend the FDR.” There might be other situations but the judge did not identify them. 
This case demonstrates the unwillingness of courts to bypass FDR procedures as they are viewed as very valuable not only for simple cases but also for complex cases. FDR allows the parties to have an independent evaluation of the likely outcome of continuing litigation. The FDR judge will let the parties know if their proposals are sounds and if certain points or arguments are likely to find favour at trial. Even if the factual issues are not entirely clear, the FDR judge is able to deal with them- although they cannot determine such issue, they can at least express their view. It is, therefore, recommended to participate in the FDR procedures instead of trying to bypass them.