England and Wales Court of Appeal (Civil Division) Decisions

i) Whether the wife’s needs should all be met by a conventional unrestricted payment or whether a substantial portion of her needs should be met by a life interest in a trust fund.

ii) The reasonable cost of buying and kitting out the wife’s future home.

iii) What budget would the wife reasonably require to meet the costs of an appropriate standard of living in a new home. Although the husband had a substantial earned income from his employment as well as a substantial unearned income he emphasised that his practice had always been to live modestly and to devote a substantial proportion of his annual income to increase his capital worth.

“I have to tell your lordship that we have come to terms. The terms are that my client will receive a clean, clear package, which is £3.5M, and it will be monies that are paid to her and there will be no trust. She will receive as well her costs paid in full in an agreed sum of £149,396.”

“Mr Singleton: Unless there is anything I can add?

Mr Justice Bennett: I am very happy to record it.

Miss Baron: My Lord, we are very grateful for the time and trouble.

Mr Justice Bennett: Congratulations to you all.

Miss Baron: Thank you very much indeed my lord. Is your Lordship available in the next week for the order to be approved?

Mr Justice Bennett: Yes, certainly.

Miss Baron: Thank you very much.

Mr Justice Bennett: Not at all.”

“My client has given a great deal of thought in the past ten days to the outcome of the negotiations which took place at the FDR on 3 August 2001. With the benefit of further consideration, my client does not believe that he can implement an agreement reached, he believes, under duress. But more importantly, my client does not think that the judge was sufficiently aware of the circumstances of this case. The comments he made were without benefit of significant evidence such as (to give only one example) the way in which the wealth was built up over many generations and not simply as the result of one man’s efforts in relation to Glaxo. The FDR is only a brief snap shot of any case and in coming to such superficial conclusions, there is a great deal of room for error.”

“The terms of the order made by Mr Justice Bennett on 3 August 2001 be finalised by the court.”

“The position, as I see the law, is set out in my remarks made on that day. It is, I believe, quite clear. What took place partly in front of the learned judge at the FDR was a familiar type of conventional negotiation which led to there being broad terms agreed between the parties. But no more than that. In my judgment, it is quite wrong to suggest that the oral announcement of terms to the judge at the conclusion of this hybrid-type of hearing (about which I shall say a little more in a moment) amounted to other than what it was, namely a broad agreement on the terms at which the parties would settle. To say that the judge gave his ‘approval’ to those terms, whatever that means and whatever may or may not appear in junior counsel’s skeleton, I think is investing the exercise that Bennett J undertook on this particular occasion with a great deal more status than it deserves. The judge had read the papers and had expressed a view. He was told what the terms were and he, as it were, gave his blessing. No doubt, if he had thought the terms were wholly inappropriate, he would have also said so. It was obvious that he would, broadly speaking, bless the terms because they were very close to the terms which he suggested himself. Therefore, it would have been an extraordinary state of affairs if he had then not done other than congratulate the parties for having come to within less than a percentage point or two of what he had himself suggested. But he was certainly not approving the order in the technical sense because there was no order for him to approve.

That is all that was achieved between the parties on this particular date. Thereafter the matter had to be reduced to an order. The order then had to be lodged, and the court, at that stage, whether it was then in front of Bennett J, or in front of another judge, I know not, would probably have made the order if he then approved it. But it is, in my judgment, a long step between what was achieved on 3 August and a final order. Therefore, any reference to decided cases where final orders have been made and later changed seems to me to be not in point so far as this application is concerned.”

“(1) The FDR appointment must be treated as a meeting held for the purpose of discussion and negotiation and paragraphs (2) to (9) apply.

(2) The district judge or judge hearing the FDR appointment must have no further involvement with the application, other than to conduct any further FDR appointment or to make a consent order or a further directions order.

(3) Not later than 7 days before the FDR appointment, the applicant must file with the court details of all offers and proposals, and responses to them.

(4) Paragraph (3) includes any offers, proposals or responses made wholly or partly without prejudice, but paragraph (3) does not make any material admissible as evidence, if, but for that paragraph, it would not be admissible.

(5) At the conclusion of the FDR appointment, any documents filed under paragraph (3), and any filed documents referring to them, must, at the request of the party who filed them, be returned to him and not retained on the court file.

(6) Parties attending the FDR appointment must use their best endeavours to reach agreement on the matters in issue between them.

(7) The FDR appointment may be adjourned from time to time.

(8) At the conclusion of the FDR appointment, the court may make an appropriate consent order, but otherwise must give directions for the future course of the proceedings, including, where appropriate, the filing of evidence and fixing a final hearing date.

(9) Both parties must personally attend the FDR appointment unless the court orders otherwise.”

“Such meetings which were previously described as meetings held for the purposes of conciliation have been developed as a means of reducing the tension which inevitably arises in matrimonial and family disputes and facilitating settlement of those disputes.”

“It is called a hearing. That is a complete misnomer. It is not really a hearing at all. The reality is that it is merely a meeting of the parties on a totally without prejudice basis at which the judge, using his experience and no doubt his authority, facilitates the negotiation and expresses, more often than not, a preliminary but inevitably superficial view about the possible outcome to the case.”

“It is totally understandable that litigants should feel under enormous pressure at these FDRs, first, to settle, and, secondly, to take very great note of what the judge says. To some extent that is the purpose. I have no doubt at all that this was such a case. I have read the transcript. Bennett J, doing the best he could, expressed himself on the various contentious issues in clear terms and, no doubt, the husband felt that he had little option but to take a great deal of notice of what the judge said on that occasion.

But occasionally and inevitably there will be times when, I believe, parties will say that they have been unfairly overborne by a combination of the occasion, the judicial indication and the heavy legal advice. That is not, in any sense, a criticism of this very useful system and certainly not a criticism of this experienced judge. But I think a little care does need to be taken that parties, when they reach agreements at these FDRs, are doing so on a totally voluntary basis. A breathing space or a period to reflect might sometimes be a wise precaution before final conclusions.”

i) an order adjourning the appointment;

ii) a consent order disposing of the case; or,

iii) directions to progress the case to its final hearing.

“What took place partly in front of the learned judge at the FDR was a familiar type of conventional negotiation which led to there being broad terms agreed between the parties. But no more than that.”

“To say that the judge gave his ‘approval’ to those terms, whatever that means and whatever may or may not appear in junior counsel’s skeleton, I think is investing the exercise that Bennett J undertook on this particular occasion with a great deal more status than it deserves.”

“But he was certainly not approving the order in the technical sense because there was no order for him to approve.”

And:

“But it is, in my judgment, a long step between what was achieved on 3 August and a final order.”

“The FDR took a very conventional route; that is to say, the matter having been explained to the learned judge, he took the opportunity to rise and read, I would say, probably skim read the papers, and he then came back to court and expressed a view about the sort of level at which this case might compromise.”

i) the court did not have the full picture;

ii) the party cited had an unsavoury record and the wife had committed adultery with him in the matrimonial home;

iii) details of the generation of the family’s fortune had not been given to the judge;

iv) the judge had acted on partial information; and,

v) Mr Singleton had formed the view that his client was not in a fit state to compromise.

BUXTON LJ:

MR: