Your Backup Trial Is Arbitration: the London Financial Remedy Changes

Overview

On 15 September 2025, significant changes were announced to the procedure and judicial sittings in the London Financial Remedies Court. This had been leading the way nationally and internationally in a superb, fast and efficient process in complicated financial cases on relationship breakdown. It was said resources were now to be diverted to the admittedly over-pressed, under-resourced and delayed private and public children law work. The consequences are significant at many levels. Although the vast majority of cases settle without a final hearing, one of these changes is that those which do need a final hearing will find themselves doubled up, with a real risk that a final hearing will not go ahead as scheduled. A primary answer is arbitration. This note looks at the changes, of details so far provided, and possible solutions for practitioners.

New language has entered the lexicon of London financial remedy lawyers. The Dictionary of Financial Remedies needs a new entry. A spectre has appeared on the horizon casting horrors of preparation for practitioners. Enter the backup trial. How have we got here?

Background

Since the Financial Remedies Court (FRC) was formed in February 2021, after a successful pilot, as an established and permanent part of the Family Court of England and Wales, dealing with financial remedy cases alone, it has shown itself as highly successful, with distinctive rules and procedures, encouraging specialisation in financial remedy work, with a high calibre of specialist judiciary. Although very few countries around the world have similar separation of children and finance work, aspects of the FRC have been borrowed and adapted globally. The London FRC, under the auspices of the brilliant HHJ Edward Hess, has innovated even further, with its sensible improvements and quick (but realistic) timetable having a beneficial ripple effect across England and Wales. It covers not only the Central Family Court, created as the centre of excellence similar to the Central Criminal Court, but family courts throughout inner and outer London.

Then on 15 September 2025, news broke of imposed changes which may, almost certainly will, significantly impact on the efficiency, timetable, judicial availability and work of the London FRC. The announcement by the President of the Family Division started by referring to allocation of judicial sitting dates, a concept unknown to most practitioners. But the consequence was the London FRC would have significantly fewer judicial sitting days. As often, the detail was elsewhere. An annex set out more.

The probable changes

Ignoring here the consequences for FR judges, full-time and part-time, some of whom will find sittings cancelled or being required to undertake public children work, I think the changes will be as follows:

• Only from October until March 2026, and will be reviewed for April 2026 but few are confident it will revert to its more efficient form although we should press for its return.
• First appointment in 16 weeks. The FPR rules state 12–16 weeks and often London was nearer 12 weeks to speed up the process; in most cases everyone was ready. It’s now the longer date. An extra 4 weeks of unnecessary waiting.
• FDR in 6 months of first appointment. At the moment in London it is 4 months if the timetable permits. Again, apart from delays in pension reports, many are ready in 4 months. An extra 2 months of waiting.
• Final hearing in 8–9 months. At the moment in London the aim is 5–6 months if timetable permits. An extra 3 months of waiting. This is an additional 6 months in total.
• Maintenance pending suit and legal services hearing in 2 months. At the moment in London it is one month. It must be remembered that these are invariably urgent applications of need for financial support and costs funding. Waiting an extra month.
• 4 court sittings per day in financial remedies at the CFC whereas at the moment I believe it is 6, i.e. 33% fewer judicial sittings and availability.
• The overflow courts, so-called Blitz court, operated in the Royal Courts of Justice, handling many of the cases in the inner and outer London family courts which had been going more slowly, with 11 judges per week, being CFC full-timers or deputies with the corresponding experience and expertise to make them efficient and getting quickly to settlements or outcomes. It is being abolished altogether. Cases go back to the other London family courts.
• Final hearings will be doubled up, as admittedly happens in other aspects of civil work and in places outside London. A final hearing will be listed as either a primary trial or a backup trial. Two weeks in advance of the date, the court office will ascertain if the primary trial is ready to go. If it is it will. The backup trial will be adjourned, postponed, and listed hopefully in 3 months although specifically no guarantee! If the primary trial isn’t going ahead, e.g. settled or not ready, the backup trial will.

The backup trial, problems for practitioners and a solution

There are still too many final hearings settling a few days before the hearing itself starts, perhaps when specialist counsel is first involved. This is a waste of judicial time and court resources. Therefore doubling up makes sense in terms of efficiency. But for the significant majority, lawyers and clients who have fully exhausted opportunities of settling well before final preparation, being the backup trial is a dreadful scenario. If for whatever reason the primary trial isn’t effective, the court will then expect everyone involved in the backup trial to be ready.

Although guidance refers to the court office contacting the lawyers involved in the primary trial 2 weeks in advance to find out if it will be effective and go ahead, this is not when the lawyers involved in the backup trial will necessarily know if their own case is or is not going ahead. It may be the lawyers in the primary trial prevaricate a few days in giving an answer. It might be a case almost settling then needs a day or so to put the final touches to a definite settlement. Accordingly lawyers in the backup trial may not definitely know they are proceeding until a week, perhaps 10 days in advance. This presents colossal problems for lawyers and clients; brief fees being deemed delivered and payable, delivery of papers to counsel with sufficient time for preparation, holding a busy barrister in reserve just in case they are needed and perhaps turning down other work, pre-trial conference, the exchange of updating disclosure, preparation of bundles, getting money quickly on account and much more.

Then there is the personal element for the parties of psychologically gearing themselves up to the final hearing, a huge emotional demand affecting not just the individuals but wider family and friends, and often too little regarded by the profession. Only then to discover the backup trial date won’t go ahead and the colossal letdown.

I suggest that it was for this sort of situation that a few of us created family arbitration 20 years ago. Because here is the obvious remedy. When the final hearing date is given, with news that the case is the backup trial, schedule also for an arbitration. Then prepare. Invariably it will be the same or similar for the in-court or the arbitration experience. Counsel will know they are going to be needed. Bundles, updating disclosure, solicitor and counsel costs, prehearing conference and documents, open offers and similar will be the same. Not all arbitrators may be willing to hold themselves provisionally in reserve but I expect many will, simply because of the fee paid element.

Consequently, there will be the comfort and confidence of knowing that there will be a final hearing adjudication, whether in court if the primary trial collapses or in arbitration. Indeed, there may be cases where everyone decides not to have the last minute anxiety of being told if there will be the in-court experience as scheduled and plump to go with arbitration anyway. There may be cases where on being told the primary trial is not effective and presumably the identity of the in-court judge would then be known, the parties decide to prefer the arbitrator; one of the many benefits of arbitration being distinctive choice of the decision-maker whereas even with the beneficial changes in London FRC for judicial continuity, the identity of the judge may sometimes not be known until days or a week before the hearing. There would be additional benefits which come with arbitration, perhaps distinctive arrangements for when the hearing would commence each day and where, tailor-made provisions on updating disclosure and many other specific benefits for the case and the parties.

Of course the fundamental difference is the cost of the arbitrator. Presuming many of these backup trials go into arbitration, this is undoubtedly and sadly another example of England’s two-tier justice. It should be pointed out that if the backup trial doesn’t go ahead and is adjourned for 3 months or more, some legal expenses will be incurred, e.g. inevitable issues which arise resulting in correspondence and costs. This is avoided if there is the arbitration and the dispute concluded. Moreover the arbitration fees vary. There is a wide range of arbitrators by qualification, from very experienced retired senior judges to younger mid-years solicitors and barristers with good experience and judgement, thus arbitrators are charging very different amounts. It is a competitive marketplace between arbitrators! But parties have confidence because all family arbitrators will have been through the qualifying courses and exams and be Members of the Chartered Institute of Arbitrators. Moreover they are qualified as arbitrators in either financial remedy or children work or sometimes both. So the arbitrator will be distinctively qualified. Search at the CIArb website under family or, better, maintain a list of known financial remedy arbitrators.

The strong recommendation to use arbitration if involved in a backup trial also applies to the opportunity for greater use of out-of-court dispute resolution in circumstances of these delays. The delay in the in-court FDR will give an inevitably even greater boost to the private FDR industry. Though mediation may have been discussed before the issue of proceedings, it remains a vital opportunity once the position of the parties is known and disclosure provided. Brilliant innovations within the profession to commit to mediation but also to arbitration if mediation doesn’t succeed, i.e. keep out of the court system altogether, will inevitably thrive. Indeed with these additional in-court delays, it’s only a matter of time before there is a fully developed private service based on the in-court process but tailor-made for the parties and their dispute.

Conclusion

Financial remedy lawyers are first and foremost family lawyers, and therefore we are concerned about the best interests of children. None of us are happy about the state of children work in the family courts. But the answer is not to take resources from a highly efficient, globally acknowledged, successful and well-working specialist court. It is not to thereby create significant delays in other parts of the family court, i.e. causing parties to wait much longer for resolution than had been the case in the London FRC. The answer is not to detract from the specialists working within that court system; solicitors, barristers, judges, forensic accountants, pension advisers and others. These new changes are until March 2026. All financial remedy lawyers in London or having cases in London will be pressing to revert in April. But in the meantime, a key solution in the backup trial scenario is arbitration which will be used by very many practitioners and parties.