EWJ FEB 59 2025 web - Flipbook - Page 89
A Paradigm Case for Non-Court
Dispute Resolution
by Jane Carter - www.becket-chambers.co.uk/
l An order made by Peel J, under FPR 20.2 (1) (c) for
the preservation of two London properties.
NA v LA [2024] EWFC 113
The court’s duty to further the overriding objective
by actively case managing has been given added impetus by the revisions to FPR Part 3 and Part 28 which
came into effect on the 29 April 2024.
No MIAM had taken place and no prior notice had
been given to the husband before the wife issued both
her divorce order application and Form A, the wife
having claimed exemption r3.8 (1) (c) (ii) (ae) any delay
caused in attending a MIAM would cause irretrievable problems in dealing with the dispute (including irretrievable loss
of evidence).
On 23 May 2024 Nicolas Allen KC sitting as a Deputy
High Court Judge in NA v LA, demonstrated a handson approach whilst exercising the powers under the
new rules. He considered this a “paradigm case” for
the court to exercise its new powers to encourage the
parties to engage in Non- court Dispute Resolution
(“NCDR”) as “this would be to their emotional and financial benefit as well as the benefit of their children” and he
imposed a stay on the proceedings.
By the return date, all three applications had been
compromised by agreement and having been provided with three draft orders which he approved the
judge raised the issue of NCDR with counsel and that
he was considering staying the proceedings on his
own initiative pursuant to r 3.4 (6) [20].
He referred at [9] to the ruling of Gwynneth Knowles
J in X v Y (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 which preempted the changes
in the FPR coming into effect and which was published so as to ensure that those involved in family proceedings (at[4]) “understand the court’s expectation that a
serious effort must be made to resolve their differences before
they issue court proceedings and, thereafter, at any stage of the
proceedings where this might be appropriate” and to signal
that “at all stages of the proceedings, the court will be active
in considering whether non-court dispute resolution is suitable” and the changes to FPR Part 3 “will give an added
impetus to the court’s duty in this regard”.
Wife’s counsel had contended that a First Directions
Appointment would be required and thereafter there
was the possibility of a private Financial Dispute Resolution Appointment [19] and that the judges suggestion of a stay was premature as the wife was “semi
blind” in relation to the parties assets and that such an
order would be seen by the husband as an “open goal”
to frustrate settlement [21]. Whereas the husband was
open to NCDR and endorsed the judges suggestion of
a stay to enable the parties to attempt settlement [22].
The facts of the case are set out at [24] and were said
to be “not particularly unusual”. The assets consisted
of (i) a family home in London worth £8m (ii) a second
London property purchased for £6.5 m and undergoing extensive renovations with a budgeted costs of
£6.5 m (iii) other properties in the jurisdiction which
according to the OCE belonged to the husband’s family albeit it is said beneficially to be owned by the husband (iv) a new build waterside apartment in Athens
which the husband was due to complete on the purchase for £3m (v) the husband’s extensive non-UK
based business interests and alleged interests in his billionaire father’s extensive business interests. The wife
was said to be a “conventional housewife”.
The judgement of Nicholas Allen KC highlights:
l any failure by a party without good reason to attend
NCDR may amount to litigation conduct and an
order for costs [7];
l that
there is no need for financial disclosure to be
given prior to parties engaging in NCDR [15];
l that the court has a duty to consider NCDR and
must keep NCDR under active review at every stage
in proceedings [26].
l that the court must enquire whether the MIAM
exemption was validly claimed and where it was
whether the exemption is still valid [29];
The New Rules considered
The judge noted at [4] that r 3.4 (1A) (b) provides that
where “the timetabling of proceedings allows sufficient time
for these steps to be taken” the court should “encourage parties” to “undertake non-court dispute resolution” and that
the agreement of the parties to an adjournment for
that purpose is no longer required and (at [5]) the
court may be give directions about the matters specified in r 3.4 (1A) on the application of a party or of its
own initiative (r 3.4 (2)).
The court heard the return date of two orders:
l An ex parte non-molestation and occupation order
under the FLA 1996 made by Hannah Markham KC
(sitting as a Deputy High Court Judge) which required the husband to leave the family home within 6
hours of the order being personally served on him.
The order also prevented the husband from having
any contact with the parties three children except by
agreement or order (3 days later on the 17 May 2024
the wife permitted the husband to return to the property and agreed that the order regarding the children
should be discharged in its entirety).
EXPERT WITNESS JOURNAL
And at [6] the judge referred to accompanying PD3A
which has also been amended with effect from 29
April 2024 and now states inter alia:
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