Confidentiality reinforced in private FDR hearings

A Financial Dispute Resolution hearing is a “without prejudice” court hearing in financial remedy proceedings. At the hearing, a judge provides an indication of what they might order if the case were to proceed to a final hearing. The aim of this hearing is to help the parties reach a financial settlement, thereby obviating the need for a final, decisive court order. 

Private FDRs are facilitated by a privately funded evaluator – a specialist barrister, solicitor, or a retired judge – and are a popular option because of the advantages when compared to court-based FDRs. Private FDRs offer greater flexibility, enhanced confidentiality and provide the parties with more control and choice regarding the process. 

In HNW and UHNW cases, the courts are routinely requested by the parties to disapply the court FDR hearing in favour of attending a private FDR before an independent evaluator. 

The benefits of private FDR hearings are widely recognised. Mostyn J said in AS v CS [2021] EWFC 34: “Private FDRs are to be strongly encouraged. They seem to have a higher success rate than in-court FDRs.”

In July 2025, the judgment handed down in BC v BC [2025] EWFC 236 by Mr Justice Peel, lead Judge of the Financial Remedies Court, addressed the issue of confidentiality in relation to FDR hearings, as the parties in that case had attended a private FDR. 

The primary issue in BC v BC was whether the Husband (H) was entitled to refer to the Wife (W)’s conduct at the private FDR. H had made reference to W’s conduct in his open proposal, which was made shortly after the private FDR. 

Mr Justice Peel’s judgment determined: “If the integrity of the FDR (and private FDR) process is to be respected, there should be no disclosure of the words or conduct of either party during the FDR. They are entitled to expect that anything they say or do cannot subsequently be referred to. If they cannot be confident of such matters, there is a risk that the FDR process will be undermined. The sanctity of confidentiality should not be eroded.”

Mr Justice Peel ruled that H could not refer to W’s conduct at the private FDR in open correspondence. The judgment in BC v BC therefore reinforces the principle of confidentiality in relation to private FDRs. Notably, Peel J cited Para 6.2 of The Family Procedure Rules 2010: “In order for the FDR to be effective, parties must approach the occasion openly and reserve. Non-disclosure of the content of such meetings is vital and is an essential prerequisite for fruitful discussion directed to the settlement of the dispute between the parties. The FDR appointment is an important part of the settlement process.” 

The paragraph concludes: “Evidence of anything said, or of any admission made in the course of an FDR appointment, will not be admissible in evidence, except at the trial of a person for an offence committed at the appointment or in very exceptional circumstances…” 

Examples of ‘very exceptional circumstances’ include disclosing a statement or actions of a party at the trial of a person for an offence which was committed at the FDR hearing, or where a statement manifestly indicates a risk – either past or future – of serious harm to a child. There is therefore a high bar to disclosure of details regarding FDR hearings. 

The judgment notes that the principle of confidentiality can only be overridden in the interest of fairness. This exception may come as a surprise to some practitioners who have been under the assumption that discussions at a private FDR are completely protected from subsequent disclosure.

Information about FDR hearings – including whether or not the FDR took place, the length of the FDR, the judge’s indication and whether or not offers were made – are not to be disclosed or referred to in open correspondence. To date, case law and authorities have both affirmed the principle that FDRs are quasi-privileged and that these aspects are confidential. 

The judgment of Mr Justice Peel serves to reinforce the without prejudice nature of the private FDR process. Although most parties understand the concept of without prejudice discussions, his judgment makes clear that to refer even casual references to the FDR process intrudes upon the content of and undermines the process itself. Inevitably, it concludes that this can lead to disputes.

As a note of caution: neither practitioners nor parties should ever assume that they can make a casual reference to FDRs, either in open correspondence or in post-hearing communications. This information can be referred to in without prejudice correspondence only. 

The confidentiality of the FDR and private FDR process assists with facilitating without prejudice settlement discussions. Private FDRs generally witness a high rate of success, saving the parties the time and cost of preparing to trial, as well as eliminating the stress and uncertainty of protracted litigation. 

Given the benefits that this confidentiality provides, the private FDR process is understandably favoured by UHNW and HNW clients, including private individuals and celebrities. In our experience, it is the favoured preference for most of our clients who prefer the choice, privacy, and level of service that a private FDR affords.

This judgment affirms that FDRs are considered to be confidential, and that this confidentiality can only be lifted in exceptional circumstances and where fairness in financial remedy proceedings requires. Practitioners will, however, continue to expect that a high bar will remain in place before this exception is invoked.