Cambridge Family Law Practice

Confidentiality is an indispensable element of negotiations between divorcing couples, the High Court has stressed.

In a Family Division hearing, Mr Justice Peel considered ‘financial remedy’ proceedings between an estranged couple. They had made use of an out-of-court process called a private Financial Dispute Resolution (pFDR). In these, an ‘evaluator’ (often a barrister or solicitor sitting as a private judge) guides the two sides towards an agreement, sometimes through a series of meetings, without being able to impose one on the parties. A court-led FDR is part of the financial remedy proceedings.

In this case, the couple agreed to attend a two-day pFDR at the first court hearing in their case. However the second day was not effective and the husband made a financial offer to the wife in open court documents that referred to the wife having left the pFDR after the evaluator’s indication.

The wife objected, insisting these references were a breach of the confidentiality that applies to the FDR/ pFDR process, i.e. that any subsequent judge hearing the case should not know what went on during the FDR/ pFDR. In addition, she claimed the references were critical of her and alleged she had left the session early, bringing the pFDR to a premature end. The husband was, she claimed, hoping to encourage the trial judge to see her in a poor light.

In response, the husband’s legal team argued that the references were purely logistical and not a breach of confidentiality under applicable legislation: they did not disclose the details of the negotiations.

In a succinct ruling, the Judge noted the purpose of confidentiality in FDR/ pFDR negotiations: to encourage candour and frank discussions. The duty of confidentiality applied to both court-led and private FDRs, stressed Mr Justice Peel. Only minimum details can be disclosed in court, such as the location and the attendance of each party.

Mr Justice Peel favoured the wife’s assertions. He explained:

“…in my judgment the offending words should be deleted from the open proposal …If the integrity of the FDR (and pFDR) process is to be respected, there should be no disclosure of the words or conduct of either party during the FDR. They are entitled to expect that anything they say or do cannot subsequently be referred to. If they cannot be confident of such matters, there is a risk that the FDR process will be undermined. The sanctity of confidentiality should not be eroded.”

He continued:

“…In this case, H goes far beyond saying whether offers were made and an indication [of the offer likely to be made] given which… is as far as he can go on his case. He does not say that [the wife] did not make an offer at all. The issue here is his description of how the pFDR came to an end. It would be unexceptional for the parties to tell the court the fact that the private FDR came to an end on the first day at a particular hour; that simply refers to timing. Much more controversial is the portrayal of [the wife’]’s alleged responsibility for it ending, and the …W’s departure shortly afterwards which inferentially blames her for the failure to reach settlement.”

The wife’s application was granted. The husband was obliged to remove the disputed references and could not refer to them in any subsequent documents as the divorce progressed.

Tricia Ashton, a partner here at Cambridge Family Law Practice said:

“This is not a long judgement, but it is a relevant one for couples at loggerheads who are using out-of-court negotiation. The Judge clearly and unambiguously reinforced the strict confidentiality of the FDR process beyond the limited, basic details which can be discussed in court. Such restrictions are, of course, in the couple’s own interests – frank and efficient negotiations can be significantly hindered without the reassurance of confidentiality. Each party knows that certain details discussed will not affect the ultimate court ordered outcome at the end of a contested final hearing if an agreement at an FDR/ pFDR cannot be reached.”

Read the ruling here.