A recent case, L v O (Stay of Order; Hadkinson Order; Security for Costs) [2024] EWFC 6, explored a nuanced aspect of family law—whether a judge hearing a Barder (or Thwaite) application could access information from the Financial Dispute Resolution (FDR) appointment where the original order was agreed. This raised questions about the confidentiality of the FDR process and its relevance to legal concepts like foreseeability.
The Role of FDR Confidentiality
Judges generally uphold the confidential nature of FDR proceedings to protect their role in fostering open negotiations and settlements. Evidence or admissions from FDR appointments are typically inadmissible, as outlined in PD 9A FPR 2010. However, the recent case acknowledged the tension between preserving this confidentiality and addressing circumstances where FDR material might hold critical relevance, such as in applications to set aside agreements.
Legal Precedents Supporting FDR Privilege
LS v PS and Q Company [2021] EWHC 3508 (Fam): Roberts J reinforced the protected nature of FDR proceedings by rejecting a third-party litigation funder’s request for disclosure of FDR materials. She highlighted how confidentiality fosters resolutions and reduces adversarial tension but also suggested revisiting the “absolute bar” on using FDR material in exceptional circumstances.
Shokrollah-Babee v Shokrollah-Babee [2019] EWHC 2135 (Fam): Similarly, Holman J cited Myerson v Myerson [2009] in barring an FDR judge from involvement in later stages of the case. This underscored the principle that FDR judges should remain neutral and uninvolved in enforcement or variation applications.
Emerging Questions in FDR Confidentiality
The unresolved legal questions in L v O bring attention to broader issues, including whether the absolute bar on using FDR material may require adjustment in specific contexts. For instance:
- Could FDR disclosures be justified in applications to set aside consent orders?
- Should the Family Procedure Rules Committee consider nuanced exceptions to confidentiality protections?
We Balance Confidentiality and Fairness
These cases highlight the challenges of balancing the need for confidentiality in FDR proceedings with ensuring fairness and justice in legal outcomes. As debates around FDR material evolve, there may be calls for clearer guidelines or limited exceptions to this long-held principle.
We uphold confidentiality with each step of our process and are committed to offering practical, effective solutions for financial disputes. Our experienced team can guide you through the process, ensuring you achieve the best possible outcome without the need for prolonged court battles.
We streamline the financial evaluation process, providing you with early insights based on a judge’s opinion. This helps you understand how your assets might be divided and plan your next steps. Our experienced panel of judges and solicitors at Paradigm Family law are here to guide you through the intricacies of financial resolution in family law
Contact us today to learn more about our fixed-fee service and how we simplify the divorce process for you. Feel free to give us a call on +44 (0)20 3951 0212 or email hello@whatwouldajudgesay.com or use get started to share your unique situation.