The case of NA v LA [2024] EWFC 113 makes it abundantly clear that judges are increasingly mindful of non-court dispute resolution (NCDR) at every stage of family law proceedings. Practitioners and clients alike should be aware that changing circumstances within a case can prompt fresh consideration of NCDR.
Recent changes, effective from 29 April 2024, have altered the court proceedings landscape significantly. For more details, see our previous article outlining the Family procedure rules changes dispute resolution. The court now has a continuous duty to consider NCDR throughout the life of the case. In NA v LA a change in circumstances led to renewed considerations of NCDR in this high-stakes financial dispute.
Case overview
The case, heard by Nicholas Allen KC sitting as a Deputy High Court judge, involved multiple hearings and orders.
Initial orders
- An ex parte non-molestation and occupation order, which initially required the husband (H) to leave the family home within six weeks.
- An order under FPR 20.2(1)(c) to preserve two London properties.
By the return date, H had returned to the property with the wife’s (W) consent. Concurrently, W had filed for divorce and financial remedies and applied for Maintenance Pending Suit (MPS) and a Legal Services Payment Order (LSPO).
Exemption from MIAMS
Prior to issue of the applications, there was no inter party correspondence and neither of the parties attended a mediation information assessment meeting (MIAMS). Practitioners will be aware that if an application has been made Family Law 1996 Part IV, on an urgent basis then this can provide an exemption for the parties to attend at a MIAMS.
At the ex parte hearing before Peel J, the judge raised non court dispute resolution as a consideration. W made representations that disclosure would be required before NCDR could be considered.
Agreed orders
- At the return hearing, W no longer pursued the occupation and non-molestation orders, which were dispensed with undertakings.
- W was granted £29,500 per month for MPS and £185,000 for legal fees (LSPO).
- The family home was transferred to W’s sole name, and the preservation orders were discharged.
Changing landscape and NCDR
However, prior to the return hearing, the landscape of the case has changed. The urgency upon which W made her ex parte application has dissipated. She had relied upon the exemption that, “Any delay caused by attending a MIAM would cause irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence)”. This exemption was no longer applicable as preservation orders had been made in relation to the properties. This provided for injunctive relief for W.
The court must consider NCDR at every stage and with no valid exemption apparent now that that the preservation orders had been made, the court brought NCDR to the forefront again for consideration.
The Judge’s intention was to stay the proceedings for NCDR to take place but under the Family Procedure Rules 4.3 (2), both parties have the opportunity to make representations. W maintained her position that disclosure needed to be exchanged before NCDR could be considered and that considering NCDR at this stage was premature. H agreed to NCDR.
In response, the judge, echoing the court’s position at the first hearing made it clear that there is no need to have financial disclosure before NCDR and that many forms of NCDR now have “teeth” to deal with non disclosers.
The proceedings were stayed with the parties given until the 04 July 2024, to advise the court what engagement if any, there had been with NCDR. The case has been described as a “paradigm” case for the court to exercise its powers.
Implications for practitioners
The NA v LA case exemplifies the evolving nature of NCDR considerations in family law. Practitioners should be vigilant, recognising that NCDR must be reconsidered if case circumstances change. Initial exemptions from MIAMS due to urgency may not apply throughout the case, especially when conditions stabilise.
Consider this scenario. If an exemption to attend a MIAMS is available due to urgency in a Family Law Act 1996 application and then the case is compromised by giving cross undertakings, often due to cost considerations and avoiding a fully defenced case, then this exemption, which excluded NCDR may not be a valid exemption to pursue a children act case or financial remedy proceedings, and it is worth considering NCDR again. It makes good sense for victims of domestic abuse to attend a MIAM before issuing proceedings within family law in relation to all applications.
From April 2024, Form FM5, required in financial remedy applications, outlines parties’ positions on NCDR from the outset. Previously, NCDR was often side-lined for court proceedings to expedite matters. Now, as illustrated by NA v LA [2024], NCDR is integral to the court’s approach, likely influencing case directions based on emerging facts.
In summary, practitioners must stay alert to NCDR’s applicability throughout a case, adapting strategies as circumstances evolve. The court’s continuous duty to consider NCDR ensures that it remains a central component of family law proceedings, reflecting a shift towards more collaborative dispute resolution methods.
