Private FDRs

Anyone who practices in financial remedy work will know that often the chief characteristics of court FDRs are the high level of costs and a matching level of disappointment.  Parties embroiled in FR litigation feel trapped and so approach the hearing anxious to reach the agreement which will cauterise their ballooning legal fees and enable them to move on with their lives.  The process is unfamiliar and in the preceding weeks many bombard their solicitors by email, which further increases their costs.  They are required to update all the disclosure they have already provided in their Form E; they answer more questions; the solicitors chase experts; they provide property particulars and evidence of their mortgage capacity; they have a conference with Counsel; they make an offer and agree a bundle; they discuss matters with their family and friends; and arrange childcare for the day.  All of this is exhausting and stressful.  When the day of the hearing finally arrives they meet with their team, hoping that finally the gap between them and their ex can be bridged.  They expect that the judge will be calm, thoughtful, experienced and wise and that his or her input will unlock a settlement.  Often they are in for a shock.

The court system is broken and many FDRs are adjourned at the last minute due to non-availability of judges, leading to delays of many months.  Assuming the hearing is not adjourned, most FDRs take place in shabby office blocks with security guards who frisk us in case we are carrying acid; conference rooms are often grotty, and the atmosphere in the building is as portentous as a WWI trench.  The lists are full and time is pressing, made worse by the fact that often documents lodged on the portal have not been seen before the hearing starts, so that court time is wasted reading Counsels’ Notes.  The District Judges conducting the hearing are always well-meaning and some are very able, but they are usually under-prepared, often through lack of time, and they rarely have a background in financial remedy work.  As a result, many do not command the respect of both sides; and only occasionally do they conduct the hearing and arrive at a solution which satisfies both parties.  It is common to come out of these hearings feeling embarrassed by the system.

None of this is the fault of the District Judges themselves.  The law has become more complicated and less certain; and for every reported case pointing towards one solution it can often feel as though there is another pointing towards a different outcome.  Staying abreast of the law is difficult for the specialist, let alone a District Judge who is often expected to be equally familiar with the law in areas ranging from personal injury to landlord and tenant.  Throw into the mix time pressure, disputes over facts and the ES2, expert evidence and a bundle running to several hundred pages, and the job of the judge at a court FDR is almost impossible.

The private FDR grew up not so much to avoid District Judges as to avoid delays in the hearing of cases in London, which often resulted in FDRs taking place more than a year after the First Appointment.  Delay was never such a problem outside London and so the impetus towards pFDRs was not the same, but once the concept of the pFDR had been established practitioners came to recognise its benefits beyond speed of listing.  These benefits are now well known:

1. As the parties are able to select the person playing the role of the judge, the hearing is not only conducted by a specialist in whom both parties have full confidence, but by someone whose style is known, so that the parties can prepare accordingly.
2. Knowing that you are appearing in front of a specialist discourages kite flying and encourages reasonable offers, which in turn enables settlement in advance of the pFDR.
3. PFDRs are always conducted in surroundings more private and far more agreeable than court, whether in Chambers or solicitors’ offices.  There is no need to fight one’s way past security, and whereas a plentiful supply of coffee and sandwiches sounds like a small thing, it can be important when tempers begin to fray.
4. Barring consent or illness, the hearing will not be adjourned.
5. The judge has plenty of time to prepare and conduct the hearing and will usually start as early and end as late as the parties wish.
6. Indications and net effect tables are often produced in writing, which makes them easier to digest.

There are some (perceived) disadvantages:

1. PFDR judges have to be paid, whereas FDR judges do not.  This is true, but the average cost is about £4,000-5,000 + VAT, which will be shared 50/50.  Saving this is a false economy because the chances of settling at a pFDR are far higher.
2. Non-court venues do not have security, screens or separate waiting rooms, which some cases need.  If there is a real risk of serious confrontation a pFDR may not be appropriate, but this is rare.  Most venues can provide screens, and staggered arrival times will lessen the chances of the clients bumping into one another.
3. A pFDR judge does not have the same authority as a District Judge and cannot reprimand a litigant guilty of non-disclosure or control a disruptive party.  Again, whilst true, an experienced pFDR judge will almost always be able to sort the wheat from the chaff and control the hearing as well as, if not better than, a (Deputy) District Judge.  In the case of NA v LA [2024] EWFC 113 Nicholas Allen KC made clear that concerns over disclosure are not a reason to eschew NCDR.

It is uncomfortable to be part of a court system which extols the virtues of avoiding the court system, but the advantages of a pFDR are obvious.  The tide is now running strongly in favour of pFDRs and it seems likely that soon, in appropriate cases, family courts will start staying court proceedings and order the parties to attend instead a pFDR (or perhaps some other type of non-court dispute resolution), as has happened in the civil field (see Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416).  The ES1 and Form FM5 already require the parties to explain their attitude to NCDR and amendments to FPR Parts 3, 3A and 28 which came into effect in April 2024 give the court power to stay proceedings and to impose costs penalties on those who unreasonably refuse NCDR.

In London and increasingly elsewhere pFDRs are the norm.  The same is not yet true in the South West, but it soon will be.  For the time being the main drag is a lack of familiarity amongst practitioners, but as this changes and more people see the benefits, and perhaps as fingers are burnt by costs sanctions, its use will spread quickly.

Despite its benefits, recent experience suggests that the pFDR system requires further refinement:

1. Whereas the London monopoly of these hearings has been broken, a perceived lack of local candidates suitable to act as the pFDR judge often leads to someone being imported from afar.  A barrister from (say) Birmingham is unlikely to be familiar with the local judiciary in (say) Truro, and so they might struggle accurately to predict the outcome of a final hearing.  Equally they will have little knowledge of the local housing and jobs market.  Engaging the services of a local practitioner is more likely to produce a well-informed indication.
2. PFDR judges are often keen to show off how much preparation they have done, which can lead to the production of prolix indications, often in writing and much like a judgment, accompanied by net effect schedules and Capitalise calculations.  Whereas laudable, this can take up too much time, well into the afternoon, which leaves less time for negotiation.  It can also give the impression of someone with tin ears who hasn’t listened to the arguments and has made up their mind in advance.  Preferable is an oral testing of the arguments, a short pause to collect one’s thoughts, then an oral indication and (if possible) a short written document in Scott Schedule form, coupled with a brief net effect table, all emailed so as not to waste more time. In November 2024 the Bar Council produced a sensible Guide to the conduct of Neutral Evaluation hearings, including pFDRs, which is essential reading.
3. Some eminent practitioners are simply not good pFDR judges, and there is no reason they should be, given the role as advocate requires skills different to that of a judge.  For this reason one should be wary of choosing a practitioner for the role without asking around and garnering at least one or two testimonials from those with direct experience of appearing in front of him or her.

The writer has appeared in countless pFDRs over the last few years, both as advocate and judge, and in 2025 the tipping point was finally reached of doing more pFDRs than FDRs.  The balance will continue to tip, and it seems that FDRs will soon be as rare as pFDRs once were.  Whilst the demise of the court system is in some ways regrettable, the new system is better than the old.

Nick Sproull
November 2025