Amongst the many publications issued by the now former President of the Family Division Sir James Munby during his last days in office was a Circular detailing Phase 2 of the Financial Remedies Court Pilot.
The Financial Remedies Court, as the name suggests, is a new court set up to specialise in dealing with financial remedy cases. The Court is currently being piloted, with the first pilot taking place in Birmingham, covering part of the West Midlands area.
The Circular tells us that the pilot is now being significantly extended, to cover the East Midlands area, the rest of the West Midlands, Cheshire and Merseyside, the North-East, London and South Wales, each with a ‘regional hub’ court. The South-East is not included in this expansion, as had been originally indicated.
This will not, however, be a pilot of the full Financial Remedies Court idea. As the Circular explains:
“For the time being, these further extensions will not involve the creation of any specified designated hearing centres and judges hearing financial remedy cases will not be expected to sit elsewhere than where they currently do. Cases will continue to be heard, as at present, in the premises currently used by the Family Court.”
Further, applications will continue to be processed in the regional divorce centres, due to the work currently being undertaken by HM Courts and Tribunals Service to enable these applications to be issued and processed online. However, once an application has been issued at the regional divorce centre, it will be transmitted to the regional hub court, for allocation to the right judge, at the right level, and in the right place.
The rest of the Circular deals with ‘private FDRs’.
An ‘FDR’, for the benefit of those who don’t know, is a Financial Dispute Resolution appointment, a hearing that will usually take place fairly early in the progress of a financial remedies application. The FDR appointment is ‘designed to enable the parties, with the assistance of the judge, to identify and seek to resolve the real issues in the case, at a time and in a manner intended to limit the overall financial cost for the parties, to reduce delay in resolving the case and to lessen the emotional and practical strain on the family of continuing litigation.’ In other words, it is an attempt to settle the case by agreement, with the assistance of the judge.
A private FDR is the same as an in-court FDR (taking its place), but instead of being held before a judge in a court it is held before a specialist family lawyer, usually in their office or chambers, upon the agreement of the parties. The parties choose who should conduct the FDR, and pay a fee for their services.
What, you may be thinking, is the advantage of a private FDR? Well, as mentioned, the parties can choose who the judge will be, ensuring that they are experts in financial remedy matters (not all judges are). A private FDR also avoids the delay involved with court listings and the risk of there being insufficient court time to deal with the case.
The downside is, of course, the cost. I have not seen any figures, and Sir James says the cost is ‘often quite modest’, but I would nevertheless expect this to go into four figures, putting private FDRs out of the reach of those litigants of modest means.
Still, as you would expect the (ex) President is keen on private FDRs, as they reduce demand on court resources. Not only will the court not have to ‘provide’ the FDR, but as the Circular states, there is anecdotal evidence that private FDRs have a higher success rate in getting the parties to settle, therefore reducing the number of cases that have to go to a final, contested, hearing.
The Circular provides for a procedure to be followed where a private FDR is envisaged. This involves the order made at the first appointment hearing (just after the financial remedies application has been issued) reciting the agreement between the parties for the case to go to a private FDR and the fixing of a directions appointment after the FDR. The directions appointment will not be needed if the parties have settled the case at the FDR, and agreed to the terms of an order putting the settlement into effect. If the FDR is unsuccessful then the directions appointment will be used to give directions for the case to proceed to a final hearing. As an alternative to this procedure, the Circular states that the case can be adjourned generally while the private FDR process takes place, which seems sensible where the timetable for the private FDR is not clear.