EWJ FEB 59 2025 web - Flipbook - Page 90
1. at 10A, that while the FPR 2010 does not give the
court power to require the parties to attend NCDR,
“the court does have a duty to consider, at every stage in
the proceedings, whether non – court dispute resolution is
appropriate”.
Given the terms of the agreed orders the MIAM
exemption in this case was no longer applicable.
Outcome
Despite the wife’s objections the judge held that this
was a paradigm case for the court to exercise its new
powers [31] and made the following directions pursuant to r 3.4 (2) [32]:
2. at 10 B, that the court “will want to know the parties’
views on using non-court dispute resolution as a way of
resolving matters”; and
1. the financial proceedings in Form A dated 14 May 2024
shall be stayed with immediate effect.
3. at 10 D, that the court also has general powers to adjourn proceedings (r4.1) which could be exercised to
encourage the parties to attend NCDR.
2. The form C is not to be processed and no First Appointment is to be listed at the present time.
The judge further highlighted at [7] that the power to
“encourage” at r 3.4 (1A) is now backed by an amendment to FPR r 28.3 by the addition of a new sub rule
7(aa)(ii) which expressly makes any failure by a party
without good reason to attend NCDR a reason to depart from the general starting point that there should
be no order as to costs and the point is emphasized by
para 10E of PD3A which states that “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.
3. Pursuant to r 3.4 (3) the parties must tell the court (by way
of a joint letter sent by email to my ejudiciary address) by 4 pm
on 4 July 2024 (i) what engagement (if any) there has been
with NCDR; (ii) whether any of the issues in the proceedings
have been resolved; and (iii) in the light of the forgoing their
respective proposals for a way forward; and
4. Upon receipt of this letter I shall decide the appropriate way
forward.
The judge reminded the parties that pursuant to r
3.4(4) if they do not update the court, “the court will
give such further directions as to the management of
the case as it considers appropriate” [33].
Disclosure
Peel J was noted as having said at [14] – “I know it is a
culture shift, but all lawyers and judges must get into our
heads that it is not simply a case of disclosure before we contemplate anything. Non court dispute resolution must be considered which can embrace disclosure ..” but the response
from W was that disclosure would be required.
Costs
The final message is that parties must keep the issue of
costs and the proportionality of incurring the same
very much at the forefront of their minds as the judge
observed at [35] “I shall certainly do so when considering the
appropriate way forward for this case”.
The judge echoed the comments of Peel J and held at
[15] that “there is no need for financial disclosure to be
given prior to the parties engaging in NCDR” observing that “NCDR will almost invariably provide for
such disclosure to be given as part of the process” and
“many forms of NCDR also have teeth to provide for
disclosure”.
Author
Jane Carter
Jane is a specialist in divorce and
matrimonial finance. She joined
chambers in 2018, bringing with
her a wealth of experience in all
areas of family law gained over
20 years providing expert advice and representation to clients dealing with divorce
and relationship breakdown.
MIAM
The judge held at [26]:
“Under r 3.3 (1) the court must consider, at every stage in the
proceedings, whether NCDR is appropriate.
clerks@becket-chambers.co.uk
01227 786331
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Under r 3.3 (2) in considering whether NCDR is appropriate the court must take into account
l whether a MIAM took place
l whether a valid MIAM exemption was claimed
l whether the parties attempted mediation or another form of
NCDR and the outcome of the process. there was nothing in
the description of the case that suggest it will be unsuitable for
NCDR”
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The judge further noted at [29] the amended wording of r 3.10 (1) provides that if a MIAM exemption
has been claimed the court will inquire into whether
the exemption (a) was not validly claimed; or (b) was
validly claimed but no longer applicable.
Our next issue will feature
Professional Negligence
He observed the judgement of Sir Geoffrey Vos MR in
Re K [2022] 2 FLR 1064 at [35] that “it is a matter of concern that a party can avoid the statutory MIAM requirement
by simply asserting that a case is urgent and they need a without notice hearing …. for the statutory MIAM requirement
to be effective, it must be enforced.”
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