In a recent legal case, L v O (Stay of Order; Hadkinson Order; Security for Costs) [2024] EWFC 6, Cobb J delved into the intricate question of whether a judge hearing a Barder (or Thwaite) application should be privy to information from the Financial Dispute Resolution (FDR) appointment where the original order was agreed. The judge grappled with the confidentiality of the FDR process and its relevance to the concept of ‘foreseeability.’

FDR Confidentiality and Legal Complexities:

Cobb J acknowledged the sensitivity of the FDR process, emphasising that evidence or admissions made during an FDR appointment are generally inadmissible, as per PD 9A FPR 2010. The judge recognised the need for a delicate balance, considering the confidential nature of FDR discussions while addressing the potential relevance of FDR information to the Barder application.

Legal Precedents:

In the case of LS v PS and Q Company [2021] EWHC 3508 (Fam), Roberts J refused a litigation loan funder’s request for disclosure of FDR-related material. Roberts J emphasised the privileged nature of FDR hearings, highlighting their role in fostering settlements and reducing tension in family disputes. The judge, however, suggested that the Family Procedure Rules Committee might need to re-evaluate the “absolute bar” on the use of FDR material in specific circumstances.

A Glimpse into Previous Cases:

In Shokrollah-Babee v Shokrollah-Babee [2019] EWHC 2135 (Fam), Holman J declined to allow an FDR judge to have further involvement in a case. Holman J cited Myerson v Myerson [2009] 1 FLR 826, emphasising that the judge who conducts an FDR is generally debarred from hearing subsequent applications related to enforcement or variation.

Unresolved Questions and Future Debates:

There is uncertainty surrounding the legal basis for the judge’s request in L v O. Could it mean that the disclosure sought in cases like LS v PS and Q Company be pertinent to applications seeking to set aside consent orders? The ongoing debate surrounding the use of FDR material suggests that these issues may continue to evolve, leaving room for potential reconsideration by legal authorities.

Intricacies of FDR Confidentiality:

The recent legal cases underscore the delicate balance between maintaining the confidentiality of FDR proceedings and ensuring a fair and just legal process. As judges navigate these complexities, the legal community eagerly awaits further developments that may shape the future use of FDR-related information in family law cases.


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