Alex Brereton, Polly Atkins & Eri Horrocks discuss NCDR and the new Financial Remedies Pre-Action Protocol in Today’s Family Lawyer
Alex, Polly and Eri’s article was published in Today’s Family Lawyer, 24 June 2024, and can be seen here.
Alex Brereton, Partner, and Polly Atkins & Eri Horrocks, Senior Associates in our Family & Relationships department, discuss the recent changes to the Family Procedure Rules and the introduction of the new Financial Remedies Pre-Action Protocol.
These reforms, effective from April and May 2024, aim to encourage greater use of non-court dispute resolution (NCDR) methods such as mediation and arbitration. The new protocol mandates full voluntary financial disclosure, attendance at a MIAM, and meaningful engagement in at least one form of NCDR before proceedings can be issued. While these changes are welcomed as a step toward easing pressure on the courts, they raise questions about how they will be applied in complex or urgent cases.
The High Court decision in NA v LA [2024] EWFC 113 is the first to interpret these new rules. In this case, despite the wife’s urgent applications and concerns about the husband’s financial transparency, the court stayed proceedings for three months to allow for NCDR. The judge dismissed the wife’s concerns about disclosure, stating that NCDR processes typically include mechanisms for financial transparency. However, they note that only arbitration has enforceable disclosure powers, and other forms of NCDR may leave parties without adequate information or legal advice, potentially undermining the process.
Alex, Polly, and Eri raise broader concerns about the potential for delay, abuse, and increased costs if NCDR is mandated inappropriately. They highlight that some parties may only reach settlement under the pressure of an impending court hearing, and that the new rules do not clearly address time-sensitive applications. While the judgment in NA v LA suggests a strict judicial approach to the new protocol, the authors argue that flexibility will be essential to protect vulnerable parties and ensure fair outcomes. They anticipate further judicial clarification as more cases test the boundaries of these reforms.
Read the full article on the Today’s Family Lawyer website [external link].
