V v W: Zero emissions from an FDR
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We are all aware that anything said at an unsuccessful FDR must not be disclosed later in the financial remedy proceedings, but I don’t think I have ever considered the possibility of disclosure in other proceedings.
This is just what was considered by Sir James Munby in the recent case V v W.
The case centred around the cost of a report valuing a company in which the husband had an interest, prepared in connection with financial remedy proceedings. Without going into detail, the husband essentially claimed that the valuers had negligently over-valued his interest in the company by some £1.5 million, as a result of which the award eventually made in favour of the wife was considerably more than it should have been. He therefore refused to pay the valuers’ fee of £75,000, and defended the claim that they made for payment.
In connection with his defence of the claim the husband sought disclosure of the transcript of the FDR, which took place just two days after the valuation report was received by the parties (it should have been filled a month earlier).
Now, unless I have missed something, a quick re-reading of the non-disclosure rule (PD9A, para 6.2) suggests to me that this was an application that could never have succeeded. The rule states:
"In order for the FDR to be effective, parties must approach the occasion openly and without 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. As a consequence of Re D (Minors) (Conciliation: Disclosure of Information)  Fam 231,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 the very exceptional circumstances indicated in Re D."
As Sir James points out, Re D is concerned with child protection and is therefore irrelevant here.
The rule clearly encompasses other proceedings, apart from the financial remedy application, and clearly indicates that anything said at an FDR is inadmissible in evidence in any proceedings, save in the two exceptional situations mentioned at the end of paragraph 6.2, neither of which apply here.
And so it turned out.
Despite some ingenious arguments by the husband's counsel, which I don't think I need to recite here, Sir James concluded:
"...that I am bound by PD9A, para 6.2 as it stands; that it means what it says; and that accordingly it operates as an absolute bar to any attempt by Mr V to make use of anything said or done at the FDR in support of his defence and counterclaim in the civil proceedings. I therefore dismiss his application for disclosure..."
You can read the full judgment here.