AS v CS (Private FDR)  EWFC 34
- On 20 May 2020, Mostyn J ordered that the parties’ first appointment would be dealt with by arbitration on 2 July 2020. He also made a mandatory order that a private FDR would take place on 23 October 2020 before Stewart Leech QC.
- The parties later agreed that the private FDR should be adjourned. Mostyn J made an order by consent on 30 October 2020 which retrospectively approved this agreement. It recorded that the private FDR would now be heard on 3 March 2021 before Sir David Bodey.
- Upon receipt of a report from the Single Joint Expert, CS’s solicitors wrote a letter in which they unilaterally purported to cancel the private FDR.
- AS did not agree to this proposal as the first available date for relisting the FDR would not be until the autumn.
- AS applied on 16 February 2021 for an order that the directions appointment fixed before Mostyn J on 10 June 2021 should be converted into an in-court FDR.
- Mostyn J dealt with the application on paper.
- Can a party unilaterally cancel a private FDR?
- Whilst private FDRs are to be strongly encouraged because of their higher success rate and the pressure they relieve from the court system, they must not be abused. If the parties were in the court system they would not be allowed to unilaterally pull out of an FDR, even if they believed it would be fruitless.
- The position cannot be any different in the private sector. If CS felt that the private FDR needed to be adjourned for further disclosure to take place, then it was incumbent on her to apply to the court for an adjournment in the absence of agreement.
- AS had seemingly accepted the entitlement of CS to pull out unilaterally. As a result, AS had made a “completely misconceived application” to convert an important directions appointment into an in-court FDR .
- Mostyn J held that “the action of the husband and the inaction of the wife are both wrong” . He ordered that:
- The private FDR fixed for 3 March 2021 shall take place; and
- If CS wishes to seek an adjournment of that private FDR she must apply in the proper form.
- Mostyn J said that he would be very likely to approve such an application, but reminded CS that “it is possible to have reasonable negotiations even where there is not a perfect fullness of disclosure” .
- He concluded at  that, where an agreement is reached that a private FDR will be held, an order should be made which:
- Disapplies the in-court FDR process;
- Requires the parties to attend a private FDR on a specific date; and
- Provides that the date may only be altered by an order of the court (which may be made by consent).