V v W  EWFC 84
Can you disclose the transcript of an FDR? V v W  EWFC 84
- In her suit for divorce, Ms W applied for financial relief.
- In March 2018, Roberts J made an order for the instruction of Mr A, a single joint expert from XYZ, to value a company (‘S’) owned by Mr V. Mr V was to be solely responsible for paying Mr A’s fees, which were not to exceed £75,000 including VAT.
- The report was received on 5 June 2018, and an FDR took place before Moor J on 7 June 2018. On 10 December 2018, Roberts J made a clean break order.
- On 14 April 2019, XYZ issued a claim against Mr V in the County Court Money Claims Centre seeking payment of its unpaid fee plus interest. Later that month S, now insolvent, entered into a USA Chapter Eleven bankruptcy.
- Mr V denied all liability, instead claiming that Mr A was negligent and that his report was one that no reasonably competent valuer could have reached. Mr V alleged he had been prejudiced in the financial remedy proceedings because the report was filed late, and because he had negotiated a settlement with Ms W on the basis of Moor J’s indication that the trial judge was likely to make findings of fact regarding H's interest in S, based on the report, which would affect the financial provision she was entitled to.
- On 20 June 2019, Moor J heard an application from the solicitors acting for XYZ, who wished to have a copy of the transcript of the FDR on the basis of the representations made by Mr V regarding Moor J’s comments, and his intention to rely on them. The application was refused. Moor J emphasised that non-disclosure of the contents of FDR hearings is ‘vital and an essential prerequisite to aid fruitful discussion for the purposes of settlement’ .
- On 12 July 2019, XYZ filed its reply and defence to counterclaim disputing Mr V’s allegations.
- On 19 May 2020, Mr V was ordered to issue an application to the Family Division for permission to rely on the transcript of the FDR. Accordingly, Mr V made an application on 27 May 2020 for permission to disclose certain specified documents as part of his defence to the civil proceedings. This application came before Sir James Munby (“the judge”).
- On 25 September 2020, Mr V issued an application to vary the order made by Roberts J. This application was not listed before the judge and he gave no directions regarding it.
- The judge adjourned the application part heard due to three fundamental difficulties with Mr H’s case:
- That the ‘indication’ which Mr V pleaded in his counterclaim did not appear in the transcript.
- That Mr V relied on the fact that the financial remedy proceedings were complete, despite his issuing a variation application.
- That neither the facts nor the basis of the variation application had been disclosed.
- Mr V’s defence and counterclaim underwent ‘drastic surgery’ . Whilst his case in relation to negligence remained essentially unchanged, he now alleged that Mr A’s report had been of ‘no value’ to him. Accordingly, there was ‘a total failure of the basis of the contract’ .
- The adjourned hearing resumed on 12 November 2020.
- Should Mr V be permitted disclose the specific documents he requested, including a transcript of the FDR hearing, in the civil proceedings brought by him against the single joint expert?
- The judge did not understand or accept the argument that because Mr V had decided to ‘ignore’ Mr A’s report he did not have to pay for it. Instead, he asked: ‘Just because the party who has commissioned the work chooses after delivery not to take advantage of the contractor’s work, why should he not have to pay for it?’ .
- In addressing the question of whether disclosure was necessary, the judge was not persuaded that there was any need to plead what happened in the FDR. Not only had the FDR been inconclusive but, on Mr V’s own case, the report was not ‘included, relied upon or taken into account in any way in the negotiations and compromise reached and order made’ .
- ‘At the heart of this case’ was the language of PD9A, para 6.2 :
‘In order for the FDR to be effective, parties must approach the occasion openly and without reserve. Non-disclosure of the content of such meetings is vital and is an essential prerequisite for fruitful discussion directed to the settlement of the dispute between the parties. The FDR appointment is an important part of the settlement process. As a consequence of Re D (Minors) (Conciliation: Disclosure of Information)  Fam 231, evidence of anything said or of any admission made in the course of an FDR appointment will not be admissible in evidence, except at the trial of a person for an offence committed at the appointment or in the very exceptional circumstances indicated in Re D.’
- Whilst a Practice Direction is not binding on the court if it is wrong in law, the judge held that para 6.2 was ‘entirely consistent with the remainder of the statutory provisions providing for and regulating the FDR’. He found that he could not ‘identify any respect in which it might otherwise be wrong in law’ .
- As a result, the judge concluded that he was bound by PD9A, para 6.2 and that ‘accordingly it operates as an absolute bar to any attempt by Mr V to make use of anything said or done at the FDR in support of his defence and counterclaim in the civil proceedings’ .
- The judge therefore:
- Dismissed the application for the disclosure of the FDR documents.
- Adjourned the application for the disclosure of the post-FDR material with liberty to apply (a) to Mr V, to restore the application once applications for leave to amend in the civil proceedings had been determined, and (b) to Ms W, to apply to dismiss the application if Mr V took no steps to restore it.