The High Court has provided a clear legal precedent confirming that the confidentiality of private Financial Dispute Resolution (pFDR) meetings is paramount and must be strictly protected.
Facts:
In contested financial remedy proceedings, a husband and wife agreed to a pFDR meeting entailing a confidential negotiation process. On the first day, the wife and her legal team left the meeting shortly after receiving the pFDR evaluator's written indication.
Following the pFDR, the husband's solicitors sent an open proposal to the wife's team. This proposal included phrases that criticised the wife's (W’s) conduct at the meeting, such as calling her decision to leave "retrograde" and "impulsive" and linking her departure to the evaluator's indication. W’s solicitors took exception, asserting that they breached the pFDR privilege and invited the husband (H) to refile an amended open offer. They further asserted that the intention was to prejudice the trial Judge against W by implying a lack of willingness on W’s part to negotiate after the indication. H’s solicitors argued that the words referred only to logistical details and thus did not breach confidentiality.
The dispute over these 46 words resulted in a separate application to the Court at a combined cost of £37,000. The Court was then tasked with determining whether H was entitled to include these references in his open offer.
Decision:
The High Court ruled that W’s application was successful and ordered the offending phrases in H’s open offer to be deleted. The Court found that H's comments, which criticised W's conduct at the pFDR meeting, were a breach of the confidentiality and privilege that protects the pFDR process. The Judge ruled that what is said and done at a pFDR cannot be used against a party in subsequent court proceedings.
The Court reasoned that allowing such comments would lead to a separate and costly legal dispute—a so-called "satellite litigation"—over the parties' conduct at the pFDR. To defend herself, W would have had to explain her reasons for leaving, which would require the Court to improperly inquire into the confidential details of the pFDR meeting.
The judgement clarified that the only acceptable disclosures from an FDR are "unremarkable facts" such as the date, location, and length of the meeting. The Court explicitly rejected H's argument that he was entitled to comment on W’s behaviour, emphasising that the reasons for a party's actions at a pFDR, such as leaving after an indication, are not the domain of the Court’s enquiry. The Court stressed that the integrity of the process requires that what is said and done cannot be subsequently used against a party.
Implications:
The primary implication of this case is that the confidentiality and privilege of pFDR meetings are sacrosanct. The judgement serves as a strong reminder that what is said and done within this "without prejudice" space cannot be used to gain an advantage in subsequent court proceedings.
The case provides a clear warning that parties cannot include self-serving or prejudicial remarks about the other side's conduct at a pFDR in their open offers. The Judge explicitly stated that if such a practice is in the process of developing, it "should cease."
This case highlights the financial risks of breaching pFDR confidentiality. The £37,000 spent on this single application demonstrates that challenging such a breach, and having to defend one, is an expensive and unnecessary distraction from the substantive issues of divorce proceedings.
