Judge disqualified by FDR

Myerson v Myerson CA TLR 7 January

Rule 2.61E of the Family Proceeding Rules, as inserted by Rule 6 of the Family Proceedings (Amendment No 2) Rules provides:‘(2) the district judge or judge hearing the financial dispute resolution appointment must have no further involvement with the application other than to conduct any further such appointment or to make a consent order or a further directions order.’ The crucial words were ‘the application’ and they could only mean the application for ancillary relief. The underlying policy of the sub-rule is clear. Litigants distrustful of each other and made anxious by the complex tactics of contested litigation have to be confident that conciliation within the court proceedings guaranteed them the same confidentiality that they would enjoy at the dispute being referred by the judge to mediation by a mediation professional. The intention and the meaning of the sub-rule were clear. The judge who had been armed to conciliate by the provision of all the privileged communications could only do one of three things: set up a further financial dispute resolution (FDR) appointment; make a consent order, or make an order for further directions, which would in effect be directions for trial. Where the contract presented to the judge at the conclusion of the FDR appointment was incomplete in the sense that there were subsidiary or peripheral issues to be agreed or determined by the court in default of agreement, they could not be referred to the FDR judge for determination. In the present case where the judge had made an order by consent at the conclusion of a successful FDR, she should not have then proceeded to decide subsidiary issues on which the parties had failed to reach agreement. The dispute should have been listed before another judge. So too, issues of enforcement are to be listed before another judge. Equally, subsequent applications to vary or set aside the consent order achieved at the FDR appointment are to be listed before another judge.