Should I consider going private?

A financial court process typically involves three court hearings, starting with a directions hearing and culminating in a final hearing or “trial” if the parties are unable to reach a settlement.  The second court hearing known as “the FDR” or Financial Dispute Resolution Hearing is, essentially, the settlement hearing.  It is a key stage in the process at which parties will (hopefully) be given an indication as to the likely outcome of the case at trial.  The idea is that the judge’s view will assist the parties towards settlement.  FDR hearings are generally speaking more informal than other court hearings.  Thankfully, FDRs have a high success rate, and many cases settle at the FDR or shortly thereafter.  If that is possible, the parties will save themselves the huge expense (both emotional and financial) of a final hearing.

Unfortunately however the family courts are incredibly congested and parties often face a considerable delay between the first court hearing and the FDR, sometimes several months.  The FDR appointment will be limited to (usually) an hour and often several FDRs are listed at the same time.  The parties have no control over who the judge will be and with the best will in the world the judges are not always able to read the papers for every case in their list before the hearing.  Sometimes FDRs are listed in front of a judge who is not an expert in money cases (they may for example be a children law specialist).  In some cases therefore the judge allocated to a case is unable to give a definitive view on the likely outcome at trial.  This has a knock-on effect on the prospects of settlement.

Prospects of settlement at an FDR are increased where the judge has had an opportunity to pre-read the papers, has expertise in finances on divorce and has sufficient time available to devote to the case.

It is possible to have a private FDR.   This involves choosing – and paying for – your own “judge”.  Typically, private FDR judges are senior barristers or, in some cases, retired High Court judges.   A private FDR avoids the delay involved with court listings and also the risk of there being insufficient court time to deal with your case.  It also guarantees that your “judge” will have read the papers thoroughly in advance and will be able to devote all of his/her time to your case.

A private FDR is conducted in a very similar way to a court FDR with both parties being represented.  It usually takes place in a set of barristers’ chambers or private meeting rooms.

Private FDR’s are not only suitable for “big money” cases.   Although the appointment of a private FDR judge involves an additional cost, this is often more than outweighed by the additional costs associated with waiting longer for a court FDR (the rationale being that legal costs mount with every passing month) and the much improved prospects of settlement that a private FDR offers.  Definitely something to consider.

If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or contact@jonesnickolds.co.uk