Turning over pebbles: when to stop seeking disclosure and make an offer instead
There comes a point when there has to be clear advice to the client that absent any soundly based dispute of fact, the FDR should be the final hearing, urges District Judge Howard Kemp
As someone who was in practice when the then ancillary relief procedure became more structured with the introduction of the Form E and the defined nature of the first appointment and financial dispute resolution hearing, I feel qualified to say categorically that for once, in relation to substantive financial applications, it was not better in the old days.
It was not unusual for ancillary relief applications to drag on for years as arguments persisted between parties on issues around disclosure and ultimately the filing of a certificate of readiness for trial.
The idea was that at some given point when everything was finally ‘on the table’ both parties would file their certificate and a hearing would be listed. You can imagine the problems when parties who could not agree on even the most simple of issues would have to agree when the time was right to hand over to the court for the ultimate decision.
Applications to list for final hearing without the agreement of the other side were common place and naturally added to the delay and cost. Quite often the application would be granted but with another raft of directions to be complied with, and then more applications, and so on.
The structure of the new way was embraced by the specialists and I believe that the civil procedure could certainly look to the model that we have as an option in managing litigation. It works. Most of the time. There does, however, remain an issue with the different ways in which firms approach the crucial stage of the process, the FDR.
The model was structured in such a way that by the time the matter is before the judge, in theory, all the disclosure has been complied with, questions answered, valuations agreed, and, most importantly, sensible, reasoned, without prejudice proposals have been made.
Sadly and increasingly there seems to be a culture of holding cards close to the chest, justified by accusations of non-disclosure, often not based on anything tangible, but on suspicion. Couples who once shared everything and seemingly would know all there is to know about their joint domestic finances are strangers to each other.
It may well be true in some cases but it is surprising how many parties remain convinced that, despite sharing a home for however many years, knowing what each has been earning, even if just by reference to lifestyle, one of them has been able to squirrel away vast sums of money, leading to an exercise of trying to overturn every pebble on the beach in the hope that one of those overturned pebbles will lead to a hidden treasure chest of goodies.
And so it is that so often nowadays, notwithstanding the practice direction, parties come to an FDR with no offers made because they are not satisfied that there have been honest answers to questions or proper disclosure.
In the context of FDR bundles we have everything thrown in including, even if not being argued about, the kitchen sink.
A wade through the morass of documents in our pre-hearing reading does not really assist, as so often the important documents, i.e. position statements and schedules of assets, are in a section marked ‘to follow’. That translates to being handed to the usher at 9.55 am.
Yet, after months of disclosure and negotiations, the court is asked to give an indication on the financial future of parties with summaries provided minutes before the parties walk in to the arena to hear the wise words of the learned judge.
One of my favourite expressions, repeated frequently, is the managing of expectations. From our side we are concerned that too often expectations are not being managed enough and rather than parties being prepared to settle on the day of an FDR they are being told that the FDR will simply give a better idea of what the outcome could be at final hearing. So often the answers are seemingly obvious and advocates may even acknowledge that they can see merit in the indications given but the client wants to think about it some more.
There comes a point where no more pebbles can be picked up and there has to be clear and at times strong advice to the client that absent any soundly based dispute of fact – and not just conjecture – the FDR should be the final hearing. There is a great deal of job satisfaction for us to help steer parties to a concluded agreement on the day of the FDR, far more so than adjudicating at a final hearing, but it has to be a collective approach and the expectations of the parties firmly managed in the days before, not half way through the day itself. FDR equals financial dispute reality?
District Judge Howard Kemp is senior vice president of the Association of Her Majesty's District Judges