AS v CS: What are the Consequences if the Court Has Not Mandated a Private FDR?
Published: 21/11/2023 07:00
The duty of the court to direct that a financial remedies application must be referred to an FDR appointment is set out in Family Procedure Rules 2010 (SI 2010/2955) (FPR) 9.15(4). Pursuant to this rule the court must direct such a hearing unless: (1) the first appointment, or part of it, has been treated as an FDR appointment which has been effective; or (2) there are exceptional reasons which make a referral to an FDR appointment inappropriate.
As the authors of the Family Justice Council’s Financial Dispute Resolution Appointments: Best Practice Guidance (Reviewed and Updated November 2021) observe that, ‘Most judges will accept that attendance at a Private FDR constitutes an exceptional reason for dispensing with the court FDR (AS v CS  EWFC 34).’1
In AS v CS, Mostyn J noted (at ) that while there is no specific power in FPR Part 9 for the court to order the parties to attend a private FDR, there is an ‘unquestionable power’ to disapply FPR 9.15(4) and the court was empowered by the court’s general case management powers (FPR 4.1(4)(a)) to make any order of the court subject to conditions.
In AS v CS, an order had been made requiring the parties to attend a private FDR. Mostyn J found that this direction should be seen as a condition attaching to the order disapplying the standard in-court procedure, and that such a condition could itself be expressed as an order. On that basis, the parties were fully bound to comply with the requirement to attend the private FDR.
As a consequence if a party feels that a private FDR needs to be adjourned (whether for further disclosure to take place or otherwise), then it is incumbent on them to apply to the court for an adjournment in the absence of agreement. If the parties do agree, then a joint application should be made to the court and, as Mostyn J observed, the court is highly likely to approve that agreement.
Mostyn J said (at ) that where an agreement was reached that a private FDR would be held, then an order ought to be made by the court (which the editors of The Family Court Practice 2023 assume would be made pursuant to FPR 4.1(3)(o)) which: (1) disapplied the in-court FDR process; (2) required the parties to attend a private FDR on a specified date; and (3) provided that the date could only be altered by an order of the court (which could be made by consent).
Subsequent to AS v CS, provision was made in the Statement on the Efficient Conduct of Financial Remedy Hearings in the Financial Remedies Court below High Court Judge Level (11 January 2022) as to the interaction between the court process and a private FDR. In accordance with paragraph 15 of the Statement, if the parties propose a private FDR, and the court agrees, the court order permitting this course will: (1) identify the private FDR evaluator; (2) dispense with the in-court FDR appointment; (3) state that the private FDR, once fixed, may only be adjourned by agreement or pursuant to an order of the court; and (4) provide that the matter shall be listed for a mention shortly after the private FDR, with this hearing to be vacated if a consent order is filed and approved by a judge in advance of the hearing.
But what is the position if the court has not made a mandatory order that a private FDR is to take place (whether in the form set out in AS v CS at  or otherwise)? If the parties have simply agreed to attend such a hearing (whether because no financial proceedings have been issued or for whatever reason an order in the specified form was not made), is attendance voluntary meaning that a party can still unilaterally withdraw?
It is certainly arguable that the answer to this question is ‘yes’. The rationale in AS v CS is predicated on the basis that an order had been made to attend a private FDR which put the parties in the same position as if an order had been made to attend a court-based FDR. However, the position may be made more complicated depending on the terms of the parties’ agreement to attend the private FDR wherever that is recorded. For example, what was said in the non-AS v CS-compliant recitals and/or the inter partes correspondence? Can this be enough for a court to consider the attendance to be mandatory?
The answer to this question may turn at least in part on Mostyn J’s observation in AS v CS at  that ‘the private FDR system must not be abused’. Is it an ‘abuse’ to withdraw from a private FDR that has been voluntarily listed? Or is it only an abuse to do so if it has been listed pursuant to a court order, meaning (as Mostyn J said) that a party is seeking to be in a better position via the private option than if they had remained in the court system where they would not be allowed unilaterally to pull out of an FDR – even if they felt that there was a deficiency of disclosure – and it would be incumbent on them to apply to the court for an adjournment.
Is it also relevant that AS v CS was a judgment on the papers? In this regard it is similar to Munby P’s decision about arbitration in S v S (Financial Remedies: Arbitral Award)  EWHC 7 (Fam),  1 FLR 1257 which of course has been superseded by Haley v Haley  EWCA Civ 1369,  1 FLR 1429.
Whatever is the correct legal position, as Alexander Chandler KC has observed,2 it is plainly necessary that some common sense has to be applied. Where one party legitimately requires further information, there might be little point in seeking to compel the listing of a private FDR before this information is available. As he says, when it comes to negotiation you can lead a horse to water, etc. This of course echoes the case-law on the much-emphasised duty to negotiate openly and reasonably which only arises when the financial landscape is clear.
In this context Mostyn J’s observation at , that:
‘it is possible to have reasonable negotiations even where there is not a perfect fullness of disclosure. Thorpe LJ once famously said that there is no case that is so conflicted that it cannot be mediated.3 That was said in the context of a vicious dispute about children. A fortiori, the sentiment applies where the dispute is about the sufficiency of disclosure in a money case. If nothing else, the parties can identify issues of principle and receive Sir David [Bodey]’s early neutral evaluation of them, so that they will know where the land lies when it comes to filling in the gaps in the disclosure later’
may be somewhat optimistic.
On a separate – but related – note, the editors of the Financial Remedies Practice 2023/24 (which of course include Mostyn J) state at paragraph 9.36 that ‘[a] question undecided at present is whether a party at a private FDR who has received a neutral evaluation outcome with which he or she does not agree, is entitled to leave the hearing and to refuse to negotiate further.’ The tentative conclusion of the editors is that ‘good practice requires both parties to adhere to the private FDR judge’s directions as to continued attendance and engagement in negotiation following the indication of outcome.’
It will be interesting to see this question decided in due course.