(Court of Appeal; Thorpe, Lawrence Collins and Goldring LJJ; 11 December 2008)
In a big money case, the parties reached an agreement during the FDR appointment. The consent order left open an issue concerning the security for the lump sums to be paid. The judge involved in the FDR appointment directed that she should determine this issue. Subsequently, following the global financial crisis, the husband applied for an extension of time, for a variation of the lump sum to be paid and for permission to appeal. The wife responded with an application to vary, seeking both faster and larger payments. The FDR judge ruled that she could hear the parties' applications. The husband opposed this, arguing that the FDR judge was debarred from taking any further part in ancillary relief proceedings between the parties.
The judge involved in the FDR between the parties, having been provided with all the privileged communications, could only do one of three things: set up a further FDR; make a consent order, or make an order for further directions, practically speaking directions for trial. It was not the case that once agreement had been reached the 'without prejudice' material was no longer relevant. Litigants distrustful of each other and made anxious by the complex tactics of contested litigation must be confident that conciliation within the court proceedings guaranteed them the same confidentiality that they would have enjoyed had the dispute been referred to mediation by a mediation professional. While any disagreement between counsel as to how the agreement between the parties should be expressed could clearly be referred to the FDR judge for determination, if there were subsidiary or peripheral issues to be agreed or determined, the dispute must be listed before another judge, as must issues of enforcement. Subsequent applications to vary or set aside the consent order agreed at the FDR must be listed before another judge.