One of the changes to the FPR 2010 made when the material parts of the Family Procedure (Amendment No 2) Rules 2023 came into force on 29 April 2024 was an amendment to r 28.3(7) which by the insertion of a new (aa)(ii) makes ‘any failure by a party, without good reason, to attend non-court dispute resolution’ a basis to depart from the general starting point that there should be no order as to costs. This is repeated in para 10E of PD 3A which states ‘the court may take the parties’ conduct in relation to attending non-court dispute resolution into account when considering whether to make an order for costs in relation to the proceedings’.

However, given the nature of the FPR costs rules, whereby the default in family proceedings is the application of r 28.2 from which r 28.3 is excepted for ‘financial remedy proceedings’, this change did not affect proceedings such as CA 1989 Schedule 1, interim applications, or appeals which are governed by r 28.2 (which applies a modified version of CPR Part 44) and nor did it affect claims under the Trusts of Land and Appointment of Trustees Act 1996 and under the Inheritance (Provision for Family and Dependants) Act 1975 (which apply CPR Part 44 in full).

However forthcoming changes to the CPR 1998 consequent upon last year’s decision in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 will change this position. These amendments come into effect on 1 October 2024 when the Civil Procedure (Amendment No. 3) Rules 2024 – https://www.legislation.gov.uk/uksi/2024/839/made – enter into force.

Amongst the amendments – which include the insertion at r 3.1(2)(o) of a new express power to ‘order the parties to engage in alternative dispute resolution’ (as it is referred to in the CPR) – is an insertion within r 44.2 (court’s discretion as to costs) at sub-rule (5)(e) so the conduct of the parties to which the court will have regard in deciding what order (if any) to make about costs will include ‘whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution’.

All other family proceedings and claims under the Trusts of Land and Appointment of Trustees Act 1996 and the Inheritance (Provision for Family and Dependants) Act 1975 will therefore be brought into line with financial remedy proceedings with effect from 1 October 2024. Of course, at least at present, the family court does not have the power to order parties to attend non-court dispute resolution and hence the different wording of the two sets of rules. However, the ‘teeth’ given to the recent amendments to FPR Part 3 by the changes to r 28.3 will now have a much wider reach.

Also of interest is the decision in the CPR to use the words ‘engage in’ rather than ‘attend’ non-court dispute resolution. The latter was chosen by the Family Procedure Rule Committee because of a concern that the use of the words ‘engage in’ may encourage judges to ask how hard parties had tried at non-court dispute resolution (which might risk breaching without prejudice privilege) and is also subjective/open to interpretation. By contrast ‘attend’ is a simple question of fact. It is not known whether the Civil Procedure Rule Committee had similar discussions. It may be relevant in this context that without prejudice correspondence is admissible under r 28.2 whereas only open correspondence is admissible under r 28.3.