Christopher Sharp KC and Zoë Saunders provide a helpful overview on the important revisions to the Family Procedure Rules, in particular Parts 3 and 28 which came into effect on 29 April 2024 which all practitioners should be aware of as they apply to both financial remedy and private law children cases.
The definition of ‘non-court dispute resolution’ (‘NCDR’) at r2.3(1)(b) is widened to mean “methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law”.
A new r3.3(1A) allows the court to require parties to file and serve “in the time period specified by the court, a form setting out their views on using non-court dispute resolution as a means of resolving matters raised in the proceedings”. This must be filed 7 days before the first on notice hearing in proceedings so usually 7 days before FHDRA or FDA and then updated at any point the court thinks fit.
The court will now be encouraging the parties to undertake non-court dispute resolution where the timetabling of proceedings allows sufficient time for these steps to be taken, which in reality will be in the majority of cases.
In financial remedies cases, the power to “encourage” at r3.4(1A) is now backed by an amended r28.3(7), which will expressly make a failure, without good reason, to engage in NCDR a reason to consider departing from the general starting point that there should be no order as to costs. This point is repeated in para 10E of PD3A.
Whilst the court cannot require the parties to attend NCDR the amendments to practice direction 3A set out that the court has a duty to consider at every stage of the process whether NCDR is appropriate.
The court’s view of these changes has been indicated in the recent case of X v Y Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538, in which Knowles J published a ruling 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 Part 3 “will give an added impetus to the court’s duty in this regard”.
Most family practitioners will welcome the added impetus to encourage clients to resolve their disputes outside the court either by way of reaching agreement through mediation or private FDR or by having decisions made for them in arbitration.
If you would like advice as to the issues raised by these changes, or for guidance on the appropriate form of ‘NCDR’ for your case, please contact the Family Clerks on 0117 923 4720 or email [email protected].
Useful resources :
Family Mediation, Arbitration and Private FDRs are effective ways of resolving disputes as swiftly, cheaply, privately, and with as little acrimony, as possible. To find out more about what our Family & Divorce team can offer, please visit this page.