The Court's resources have been placed under significant strain as a result of the pandemic. This has led to substantial delays and a backlog of cases waiting to be heard – a frustration that legal professionals have shared with their clients over the past 18 months. The Courts are increasingly encouraging parties to engage in private Financial Dispute Resolutions (FDRs) and, whilst this will undoubtedly ease pressure on the Courts, what benefit does this have for the parties?
The difference between an FDR and a private FDR is much akin to the difference between medical treatment you would receive under the care of the NHS and as a private patient. Whilst the procedure (and therefore the outcome) may be the same, the experience is altogether different. This is predominantly due to the parties being able to choose their judge and the date of the private FDR, meaning they avoid being placed at the back of the queue on the Court lists.
Following the First Directions Appointment (FDA) the matter will be listed for an FDR. The length of time between these hearings will very much depend on the Judicial and listing availability of the Court at that time, but you could easily be looking at a period of 5 months.
Unless there are exceptional circumstances, the parties must both attend the FDR, regardless of the date upon which it is listed. If circumstances are such that one party is unavailable, the matter will need to be re-listed and this will cause further delay. There is also no guarantee that your chosen counsel will be available and alternative counsel may therefore need to be instructed.
Where the parties have agreed to attend a private FDR they can select the date on which the hearing is to take place. This means that they can ensure that the hearing can be listed on the earliest date that their legal representatives and chosen Judge are available.
One of the primary considerations of the parties will be whether they can afford the additional cost of a private FDR. The judge’s fee for a private FDR is likely to be in the region of £3,000 + VAT and, although ordinarily borne by the parties equally, can be a concern on top of already mounting legal fees. Despite the initial outlay, however, a private FDR could result in the parties saving legal costs in the long-run. If the private FDR is effective and leads to a settlement it will prevent the matter proceeding all the way to a final hearing.
One of the most unsettling aspects of court proceedings is the uncertainty that comes with it – when will the matter conclude? Who will determine it? What will the final outcome be? By taking the matter into a private arena the parties regain an element of control over some of these aspects.
You may query how much the timing and location of a hearing can affect its outcome; however, combined with selecting your judge, these factors can be significant. The judge you choose will be someone with specific expertise in financial matters; something which is not guaranteed at court. Further, the private FDR is likely to take place at the judge’s chambers which is a far more comfortable environment than a court building and in turn is more conducive to negotiation discussions.
The amount of time that a judge can dedicate to your case is one of the most significant differences between an FDR at court and a private FDR. A judge sitting in court will have multiple cases before them on any given day and is therefore only able to dedicate a certain amount of time to your matter. In contrast, the judge at a private FDR will have set time aside to consider all of the case papers in advance of the hearing and will have allocated the entire day to your case. This not only means that the judge will have a thorough understanding of the issues between the parties but also relieves the time pressure of insuring that all issues are addressed within the time allocated by the court.
Ultimately, whether or not the parties wish to engage in a private FDR is a matter for them, and is not something that the Court is currently mandating. To revert to the NHS vs private healthcare analogy, there is never any guarantee of the outcome of the ‘procedure’ and it may be the same whichever route you chose to take. However, as set out above, there are some benefits afforded to you by electing to have the matter dealt with privately which you may find worth the financial expense.