Moor J describes the amendments as follows:
“The six questions in my order became ten. The twelve lines in my order became twenty-eight. A number of new issues were raised. Amendments were made to all but two of the original questions.”
The letter could not be agreed and so the matter was returned to Moor J to determine by way of cross applications. He received these applications with “dismay”.
Moor J found against the wife and was critical of her conduct in seeking such extensive amendments which could and should have been dealt with at the First Appointment. So unimpressed was he that he ordered her to pay the husband’s costs of the cross applications, which is unusual in such proceedings.
Whilst there is no information in the anonymised judgment about the value of the assets in this case, it is clear this dispute should never have arisen, and significant costs had been wasted. That said, legitimate issues do sometimes arise. It is, however, not always necessary to refer the matter back to a Judge. Moor J says at paragraph 10 of his judgment:
“High Court Judges are exceptionally busy. They do not have time to draft letters of instruction or even to determine disputes as to the wording of such letters. On this occasion, there was no legitimate dispute as I had already made an order that set out the issues [the SJE] had to consider. If, however, in a future case, there is a genuine issue as to drafting, I consider it would be exactly the sort of matter that should be referred to an arbitrator who is accredited by the Institute of Family Law Arbitrators.”
Arbitration has been available as a means of dispute resolution in financial remedy proceedings since 2012 and in children proceedings since 2016. The parties can decide who is the arbitrator and what issues they will decide. These can range from determining the entire application or a single issue which cannot be agreed such as the wording of the single joint expert letter of instruction, as in this case. It can be an excellent way to maintain more control over family litigation and can be a quicker, less stressful and possibly less expensive method of resolving disputes than court proceedings.