Nicholas Allen KC sitting as a Deputy High Court Judge. A ‘paradigm’ case for the court to exercise its new powers under FPR 3.4 to stay proceedings for the parties to engage in NCDR.

The court heard the return date of two orders: (1) an ex parte non-molestation and occupation order which required H to leave the family home within six weeks (he had already returned to the property by the time of the return date, with the W’s agreement); and (2) an order, made by Peel J, under FPR 20.2(1)(c), for the preservation of two London properties.

In the hearing before Peel J, the court raised non-court dispute resolution as a possibility. The response from the W was that disclosure would be required. The court on the return date echoed the comments of Peel J at the first hearing, that there is ‘no need for financial disclosure to be given prior to parties engaging in NCDR’ and that many forms of NCDR have ‘teeth’ to be used in the case of a reluctant discloser.

On the same day that the ex parte orders were made, the W filed her divorce petition and a Form A. There had been no inter partes correspondence prior to that day. The W then filed an application for MPS and LSPO around one week later.

At the return hearing, the parties agreed three orders. Firstly, under the FLA 1996 Part IV, W did not seek the continuation of the occupation order and the non-molestation order was replaced by undertakings in like terms. Secondly, an order compromising the W’s MPS and LSPO applications, with H agreeing to pay £29,500 pcm to W and a payment of £185,000 to W’s solicitors to cover fees to date (£120,000) and a further sum (£60,000) to the conclusion of the first appointment. Finally, an order transferring the family home into the W’s sole name with the preservation orders and Land Registry restrictions to be discharged or removed.

The judge raised with the parties that he was considering staying the proceedings of his own initiative, but FPR 4.3(2) required him to give both parties an opportunity to make representations before doing so.

The W reiterated the issues with non-disclosure, and described the suggestion of a stay as being premature. The H endorsed the suggestion of NCDR.

The judge considered that the facts of this case were not unusual or unduly legally complex. There were two properties in London as well as other properties in this jurisdiction which were in the names of H’s family, although it may be argued that they are beneficially owned by H. H was due to complete the purchase of a property in Athens and had extensive non-UK based business interests.

The judge reiterated that under the new rules the court has a duty to consider NCDR and the court must consider, at every stage in the proceedings, whether NCDR is appropriate. When considering if it is appropriate, the court must take into account whether a MIAM took place, whether a valid MIAM exemption was claimed and whether the parties attempted mediation or another form of NCDR and the outcome of that process.

No MIAM had taken place in this case and no prior notice had been given to the H by the W of her application for divorce or Form A. The judge considered that the exemption claimed for the MIAM (i.e. Any delay caused by attending a MIAM would cause irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence)) was no longer applicable given the preservation orders made.

The judge considered this to be a ‘paradigm’ case for the exercise of the court’s new powers and therefore stayed the proceedings. The parties were to inform the court by 4 July 2024 what engagement, if any, there had been with NCDR, as well as whether any of the issues had been resolved and their respective proposals for the way forward. The court would then determine the appropriate way forward.