Family Court, 24 May 2024, Nicholas Allen KC (sitting as a Deputy High Court judge)
Deborah Bangay KC, instructed by Rayden Solicitors, for the wife; Sarah Phipps KC, instructed by Osborne Clarke, for the husband
On 14 May 2024, the wife was granted ex parte non-molestation and occupation orders under the Family Law Act 1996; these required the husband to leave the family home within 6 hours of him becoming aware of the terms of the orders and to have no contact with the three children except as might be agreed or ordered. The husband left that evening, although after a subsequent without prejudice meeting, the husband was permitted to return to the property on 17 May, with an agreement in place that there would be no restrictions in place regarding the husband’s contact with the children.
On the same day, the wife was also granted an interim order (by Peel J) for “the detention, custody or preservation of relevant property” in respect of the family’s two London properties. Short and informal notice was given (about 28 minutes, by telephoning the husband). The wife explained that she had not sought a freezing order as there was no evidence of “any intention to dissipate any assets at the moment”. Peel J referred to the new focus in such cases on non-court dispute resolution, and the fact that this could include disclosure and urged counsel to take this on board.
Again on the same day, the wife’s solicitors filed the wife’s divorce petition and Form A via the CCD portal. The Form A claimed that “the application must be made urgently because … Any delay caused by attending a MIAM would cause irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence)“. This reflected the MIAM exemption at r3.8(1)(c)(ii) (ae). There had been no previous correspondence with the husband. On 22 May 2024, the wife filed an application for maintenance pending suit /interim periodical payments and for a legal services provisions order.
The wife claimed that the family home in London was worth £8m (and mortgage-free); (ii) there was a second London property purchased for £6.5m, currently undergoing extensive renovations with a budgeted costs of a further £6.5m (and which was mortgage-free); (iii) there were other properties in England and Wales held in the names of the husband’s family (possibly beneficially owned by the husband); (iv) the husband was due to complete the purchase of a new build waterside apartment in Athens at a cost of €3m; (v) the husband had extensive non-UK based business interests; and (vi) the husband’s father was reputed to be a billionaire with extensive interests and the husband was understood to have interests in the family businesses and to hold significant funds.
The husband stated that he had not even known that the marriage was over, and that the wife’s actions on 14 May had “blindesided him”, floored him and left him very distressed.
The return date was listed with a time-estimate of 2 hours. The parties and their advisors spent (at their request) almost the entire day outside the court.
At 4.50 pm they provided the court with two agreed draft orders. The first was an order under the Family Law Act 1996, Pt IV which confirmed that the wife did not seek the continuation of the occupation order, with the non-molestation orders replaced by undertakings in like terms to remain in force until the determination of the wife’s financial claims or further order. The second was an order compromising the wife’s as yet unissued MPS/IPP and LSPO applications, in which the husband agreed to make (i) monthly payments to the wife at a rate of £29,500 pm (with the financial status quo otherwise largely maintained); and (ii) payment to the wife’s solicitors of £185,000 (including VAT) in respect of the wife’s costs to date and those estimated to the conclusion of the First Appointment (with a recital to the order stating that the wife’s costs to date were £125,000 and to First Appointment were estimated to be a further £60,000).
At 5 pm the parties provided a third agreed draft order which provided for the transfer of the family home into the wife’s sole name with the present security (i.e. the preservation orders and the Land Registry restrictions) thereafter to be discharged/removed.
Having approved the three orders the judge asked counsel for their views on non-court dispute resolution processes, given what had been said by Peel J on 14 May 2024, and then raised with them the fact that he was considering staying the proceedings on his own initiative. FPR, r.4(6) stated that “[w]here the court proposes to exercise its powers of its own initiative, the procedure set out in rule 4.3(2) to (6) applies” and r 4.3(2) stated “… “where the court proposes to make an order of its own initiative (a) it may give any person likely to be affected by the order an opportunity to make representations …” The wife’s counsel emphasised the need for disclosure, in her view, before any stay for the purpose of attempting non-court dispute resolution was granted.
The deputy High Court judge stayed the proceedings for non-court dispute resolution to take place.
There was no need for financial disclosure to be given prior to parties engaging in non-court dispute resolution. Non-court dispute resolution would almost invariably provide for such disclosure to be given as part of the process. Many forms of non-court dispute resolution also had ‘teeth’ if there was (say) a reluctant discloser. For example if parties opted for the IFLA financial arbitration and a party disobeyed the arbitrator’s order then, pursuant to the Arbitration Act 1996 s 42(1) (headed “Enforcement of peremptory orders of tribunal“), unless otherwise agreed by the parties, the court could make an order requiring a party to comply with a peremptory order made by the tribunal. Additional court powers exercisable in support of arbitral proceedings were set out in s 44 of the Arbitration Act.
At least at this stage of the case, the facts did not appear to be unusual. Further, notwithstanding that it was seemingly a so-called ‘big money’ case, it did not appear that it might be unduly legally complex. Some or all of the wife’s presentation might be disputed on the husband’s behalf, but there was nothing in the wife’s description that suggested that the case would be unsuitable for non-court dispute resolution.
The court had a duty to consider non-court dispute resolution. Under Family Procedure Rules 2010, r 3.3(1) the court must consider, at every stage in proceedings, whether non-court dispute resolution was appropriate. Under r 3.3(2), in considering whether non-court dispute resolution was appropriate the court must take into account (i) whether a family mediation information and assessment meeting (MIAM) had taken place; (ii) whether a valid MIAM exemption had been claimed; and (iii) whether the parties had attempted mediation or another form of non-court dispute resolution and the outcome of that process. The court was also under obligations in respect of active case management.
Further as observed in X v Y (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538, those involved in family proceedings must “understand the court’s expectation that a serious effort must be made to resolve their differences before they issue court proceedings” and “at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable“. As the judge in X v Y further observed, the recent changes to Pt 3 “will give an added impetus to the court’s duty in this regard“.
No MIAM had taken place in this case. No prior notice had been given to the husband of the wife issuing her divorce order application or her Form A. From 29 April 2024 amended wording to r 3.10(1) provided that if a MIAM exemption had been claimed, the court would inquire into whether the exemption (a) had not been validly claimed; or (b) had been validly claimed but was no longer applicable. The court did not need to inquire whether the exception had been validly claimed in this case; but, given the terms of the preservation order made by the court, the MIAM exemption claimed was no longer appliable. In Re K [2022] 2 FLR 1064 the court had stated (in the context of an application for a child arrangements order under CA 1989) that “[i]t is a matter of concern that a party can avoid the statutory MIAM requirement by simply asserting that a case is urgent and they need a without notice hearing.” The court had also observed in Re K that “[f]or the statutory MIAM requirement to be effective, it must be enforced“.
In the court’s view and in compliance with its duties, this was a paradigm case for the court to exercise its new powers. The court considered non-court dispute resolution to be appropriate and wished to encourage the parties to engage in it. This would be to their emotional and financial benefit as well as to the benefit of their children.
Pursuant to FPR 2010, r 3.4(2) the court therefore made the following directions:
a. the financial proceedings were to be stayed with immediate effect;
b. the Form C was not to be processed and no First Appointment was to be listed at the present time;
c. pursuant to r 3.4(3) the parties must tell the court (by way of a joint letter sent by email to the court’s judiciary address) by 4 pm on 4 July 2024 (i) what engagement (if any) there had been with non-court dispute resolution; (ii) whether any of the issues in the proceedings had been resolved; and (iii) in light of the foregoing their respective proposals for the way forward; and
d. upon receipt of this letter the court would decide the appropriate way forward.
Pursuant to FPR 2010, r 3.4(4), if the parties did not tell the court if any of the issues had been resolved as directed, the court would give such further directions as to the management of the case as it considered appropriate.
There must be a question mark over whether it had been appropriate for this case to have been the subject of applications made to the urgent applications judge at the High Court rather than (say) to a judge sitting at the Central Family Court. The mere fact that parties might live in (and/or own) valuable London properties did not of itself begin to justify an application in relation to the occupation thereof being made in the High Court.
The costs in this case were already considerable (at least on the wife’s side, as the husband had not instructed solicitors until 2 days before the hearing). Both parties must keep the issue of costs and the proportionality of incurring costs very much at the forefront of their minds. The court certainly would do so when considering the appropriate way forward for this case.
