I previously wrote an article in June 2022 titled The Case For a Non-Court ‘Court’ Case. This advocated the consideration of Non-Court Dispute Resolution (NCDR) as alternatives to the traditional route of an application to the judge. NCDR arises out of the acrimonious, lengthy, complicated, uncertain, and costly nature of the customary court approach.
Now, I am pleased to say, albeit not before time, the court rules have been amended to put NCDR on a much firmer footing rather than the purely voluntary basis previously.
In Financial Remedy and proceedings concerning children, the parties will now need to apply their minds to such forums not only at the pre-court stage but must also keep it under review as the case progresses. All will now need to file with the court a formal document setting out their position on NCDR. Legal representatives/litigants must also be prepared to expand on their position at court.
This is better late than never: on all too many occasions I have suggested NCDR to be met with a blithe response from another firm that, for example ‘we do not see how arbitration will help’. This is ludicrous in that the benefit of that process is clear: a final binding decision from an arbitrator could potentially be made within a few weeks of them being secured versus the many months/years that could be encountered in court. In the court system – beset with delays as a result of changes in legal aid availability and chronic underfunding, such a delaying tactic ultimately serves to denude the pot of capital available for distribution and so make the parties’ lives harder in the longer term. As such, opposition to NCDR in most cases was very surprising.
The new provision goes even further and allows the court to adjourn the proceedings to facilitate NCDR. The strength in this is that the parties do not need to agree. Accordingly, although it remains to be seen in practice, it would appear that there is scope for the court to compel parties to attend NCDR. The compulsion may come in the form of cost penalties: In family cases, on conclusion of the proceedings, it is usually the position that parties only pay their own legal costs – not those of the other. However, now, if a party fails to engage with NCDR without good reason, the presumption of not paying the other’s costs can be re-visited. With the passage of time, we will no doubt see case law where ‘good reason’ is defined but for the time being the omens are good; certainly, an improvement on the current position where parties can play fast and loose with the system with no real risk to themselves.
From this perspective, these changes should be welcomed with open arms by all.
For further information or advice on any family law matter, please contact Keith Unger on 01732 747900 or [email protected]. Warners Solicitors has offices in Sevenoaks and Tonbridge, Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
