When should your legal team apply for an oral disclosure hearing (a “Coleridge application”)?
Sometimes in complex cases it is important to keep the right strategy from the outset, but it is always easy to second guess after the fact.
However, the Court (and the parties) must assure that the overriding objective in Family Proceedings is followed, which also means that issues should be identified very early in the process including any disclosure disputes or objections.
In the case of OS v DS  EWHC 2376 (Fam) (06 October 2004) High Court Judge Coleridge directed a preliminary hearing for oral disclosure. What is an ‘OS v DS’ hearing and when do you need it?
OS v DS hearing (normally) before FDR hearings?
This preliminary hearing is directed in complex cases in order to obtain preliminary oral disclosure with (possibly) provisional findings and or indications. High Court Judge Coleridge specifically stated that in the right case this is a desirable process and is compliant with the overriding objective. He found at  that:
- Explanations and factual issues could be fully tested at a far earlier stage than would otherwise be the case
- Trips down blind alleys could be ruled out or at least curtailed
- Preliminary indications or even findings could be made
- The party under scrutiny would be able to appreciate at an early stage what would be faced in terms of examination.
But Coleridge J also warned that any judge conducting such a hearing must be astute to ensure that both parties’ right to a fair hearing of the substantive issue itself was not jeopardised.
In short and as per Mostyn J in BP v KP and NI (Financial Remedy Proceedings: Res Judicata)  EWHC 2995 (Fam) (26 October 2012) at  the OS v DS hearing “is a form of oral discovery designed to test the strengths and weaknesses of the parties’ cases under cross-examination, so that an effective FDR can take place.”
Although in the case of Young v Young  EWHC 3637, High Court Judge Moor was of the view at  that:
- There is clearly an important role for the taking of oral evidence before a final hearing. I have, however, come to the conclusion that it should not be an unfocussed, wide ranging trawl through the evidence without findings of fact being made at the conclusion of the hearing, as happened in this case. I entirely accept that it is unhelpful to be too prescriptive. There may be situations where such a hearing is valuable for a specific reason but, in general, I take the view that it is only a proper use of court resources if one of the following two scenarios apply: –
(a) As in certain Public Law cases, where it leads to specific findings of fact that become res judicata so that the issues need not be revisited at the final hearing. An example would be a case in which there is an issue as to whether or not a Trust is a Post Nuptial Settlement. This can easily be determined separately, and it is clearly important that the parties know the result so they can then formulate their approach to the rest of the case. In such circumstances, the same judge would almost always have to conduct the final hearing. Moreover, if the case is to be dealt with in this way, the parties’ respective rights to a fair trial pursuant to Article 6 must be carefully considered. It may, for example, be unfair to one party to consider a specific part of the case in a vacuum, particularly if issues of credit arise.
(b) By analogy with the case of Khanna v Lovell White Durrant  1 WLR 121, it is part of an exercise in obtaining pre-trial discovery of documents where the witness is asked to give specific evidence by way of explanation of the document or how it came into his or her possession. Inspection Orders pursuant to FPR 21 are a very valuable tool in the court’s armoury. I would envisage additional oral evidence only being necessary where it will assist the future conduct of the case either by shaping the remainder of the discovery process or in ruling out a specific line of enquiry (see Frary v Frary  2 FLR 696 at 703B).
In a permission to Appeal application hearing on paper Lord Ryder found that the purpose of a OS v DS hearing is “to bring clarity to the parties’ negotiations so as to inform settlement or subsequent determination” (see reference in Quan v Bray & Anor  EWCA Civ 1253 (04 December 2015) at )
OS v DS application during a Final hearing
In the recent case of US v SR  EWHC 175 both parties’ Counsel submitted on the sixth day of a final hearing that there should be an OS v DS fact finding exercise with the s.25 exercise of the Court to be adjourned to another day. The Judge, Jennifer Roberts QC (as she then was) made (after the OS v DS hearing) extensive findings of non-disclosure against the husband and she made provisional indications as to the outcome.
In NR v AB & Ors  EWHC 277 (Fam) (22 February 2016) High Court Judge Roberts J. found at  that in this case the oral evidence was conducted in a OS v DS type of style.
Whether as a preliminary approach or a non – disclosure challenge during a final hearing the OS v DS application should be early and considered in complex non-disclosure cases on an ongoing basis.
If you would like more details on this or want to discuss your family law matter, please do not hesitate to contact James, Frank or Evelyn. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 01904 217225 or email us to [email protected].