Tuesday, January 14th, 2020
At the end of 2019, one of my colleagues was advised by the judge at a Financial Dispute Resolution Appointment (FDR) in the family court that the next available date for a final hearing would be in 2021. No, that was not a typo. Fortunately, and no doubt spurred on by the thought of matters dragging on for another year, the matter was settled at the FDR. This is not an isolated incident. Another client was told they would have to wait 7 months between the First Directions Appointment (FDA) and the FDR, compared to the usual 3 months. Whether it is as a result of budget cuts or the number of cases reaching the family court, we are currently facing unprecedented delays with the court across the board.
Not only are these delays frustrating for clients who are desperately looking to move on with their lives, such delays are also costing our clients more money. Whilst it is true that, generally speaking, the work required does not change just because the next hearing at the family court is 13 months away, rather than 3, such delays will often cause additional pressure which in turn will mean that tempers will fray. Parties will become more hostile and this will almost always lead to more solicitor correspondence.
Are there any alternatives?
Fortunately, there are a number of ways in which these delays can be mitigated or avoided altogether, and I will look at these various options in turn:
Use the FDA as an FDR
So long as both parties agree and are organised, it is possible to use the FDA as an FDR. Most matters will settle at the FDR (or shortly after). This is because at an FDR, a family court judge will give their indication on how matters should be resolved and what the likely outcome will be if the parties proceed to a final hearing. The parties will also usually be given a costs warning by the judge. Whilst both parties should have already received this advice from their solicitors, hearing it from a Judge seems to make all the difference. We therefore find that this indication is invaluable when trying to reach a settlement and, it follows, that the earlier the parties receive this indication, the earlier a settlement will be reached. Even if a settlement cannot be reached at the FDR, you still benefit from being further down the line and avoiding what could have been a 7 month wait between the FDA and FDR.
As stated, this is only possible where both parties are in agreement and have been able to agree directions and implement them in advance. The first appointment hearing is when directions are made. If there is any disagreement about directions, for example, whether a pension actuary is required or not, then an FDA would be necessary.
Another possibility which may be an option for some parties is to have a Private FDR. Unlike the typical FDR, in a Private FDR you must pay for the judge’s time in addition to that of your own legal representatives. Depending on the judge, this cost could be anywhere from £3,000 – £7,000 plus VAT, though this will usually be split between the parties. This additional cost is the reason many parties will not go down this route but there are real benefits.
At a typical FDR, you are beholden to the family court. Not only can this mean you have to wait for up to 7 months for the hearing, on the day itself, you will be one of many cases listed before the judge. You may have to wait until the afternoon to receive the indication. You may be before a family court judge who has not had a chance to fully consider the papers or who specialises in a different area of law. Just with any profession, family court judges each have their own areas of strength and there is no guarantee that you will get one who can fully appreciate the complexities of your particular case.
A Private FDR is different. You agree who the ‘judge’ will be with the other side and can select someone who has the required expertise (provided you both agree). The date is booked based on the parties’ (and the ‘judge’s’) availability and will often be much sooner than a date the court would provide. The ‘judge’ will also have received the documentation in advance and would have had an opportunity to consider all the pertinent information. Further, your case will be the only matter your selected ‘judge’ will hear on that day; you will be able to receive their indication as early as possible, have the rest of the day to negotiate, and go back to the ‘judge’ for further assistance (if needed). It allows the parties to have far more control over the process and ensure that the all-important indication they receive is carefully considered, providing the parties with the best possible chance of reaching a settlement.
As with the first option, a Private FDR can only take place when both parties agree.
Whilst not an option that will suit every matter, Arbitration is an option that should be given due consideration.
Arbitration is a process which takes place outside of (and instead of) the court process. One would want to commit to Arbitration as early as possible; rather than allow one party to issue court proceedings.
In many ways, Arbitration is similar to having a Private FDR: the parties appoint an arbitrator who they have chosen; they are able to select the venue, how the matter should be dealt with and to what extent the arbitrator should be involved. As with the Private FDR, Arbitration therefore provides the parties with more control and allows for matters to be dealt with more informally. Some cases can even be dealt with on the papers, without the need for a face-to-face hearing.
The appointed arbitrator will consider the papers and will then make a decision or ‘award’ that will be sent to both parties. Unlike the indication at a Private FDR, this award is binding upon the parties. There is no opportunity to re-negotiate. In this way, it is like the judgement at a final hearing; you simply get there much more quickly.
The prospect of having to agree to be bound by the arbitrator’s award can be quite daunting, which is why it is not suitable for all people. However, the benefit of Arbitration is that matters can be dealt with, and finalised, much more quickly and the result is final. This provides a level of certainty which can be very attractive to some clients. Because matters are dealt with much more quickly, the total costs incurred in going to Arbitration are usually considerably less than court proceedings, particularly those that end up going all the way to a final hearing. The costs will vary depending on the circumstances of the case and should you decide to consider Arbitration, we can obtain a range of quotes upfront, though the costs of the Arbitrator himself/herself are generally shared between the parties. Each party will in addition have the costs of their own legal team, which will typically include a barrister to represent them at the Arbitration hearing.
Once again, Arbitration is only available if both parties agree.
Our Family & Divorce Law department can advise on all of the above options, in addition to typical financial proceedings, solicitor-led negotiations and Alternative Dispute Resolution methods. We will advise you at each stage whether there is a way to minimise costs and to avoid delays. Should you require further information in relation to any of the above, or if you want to arrange an initial appointment to discuss your options, please do get in touch.
Maisie Lockyer is a solicitor in the Family & Divorce Team at Hanne & Co. LLP