Myerson v Myerson

An FDR judge who has received without-prejudice material must have no further involvement in the ancillary-relief application except to conduct a further FDR, make a consent order, or make a further directions order under rule 2.61E(2) of the Family Proceedings Rules 1991.

A consent order does not end that restriction where a substantive matter remains unresolved. Disputes concerning security, enforcement, variation, or setting aside the order must be determined by another judge. The FDR judge may, however, resolve a technical disagreement about expressing a concluded agreement in the form of an order.

In contested ancillary-relief proceedings, the parties reached agreement at a further FDR before Baron J. Their consent order required security for instalments of a lump sum, but left the nature and extent of that security to agreement or determination by the court.

Further disputes then arose about security and, following the financial crisis, applications to vary or set aside the order. Baron J ruled that she could determine those issues notwithstanding her role at the FDR. The husband appealed.

The central issue was whether rule 2.61E(2) of the Family Proceedings Rules 1991 prevented the FDR judge from deciding substantive issues left unresolved by, or subsequently arising from, the consent order.

1. Appeal allowed. Rule 2.61E(2) of the Family Proceedings Rules 1991 was to be construed in light of its purpose: to encourage frank settlement negotiations by preserving the confidentiality of without-prejudice material disclosed at an FDR.

2. Thorpe LJ, with whom Lawrence Collins and Goldring LJJ agreed, held that “the application” meant the ancillary-relief application as a whole. The restriction was not lifted merely because the parties had made a consent order. An FDR judge who had seen privileged material could thereafter only conduct a further FDR, make a consent order, or make a further directions order.

3. The judge could resolve a technical dispute over converting a concluded agreement into a proper order, as illustrated by Rose v Rose [2002] 1 FLR 978. But a substantive unresolved issue, including the nature and extent of security, had to be listed before another judge. The same applied to enforcement and later applications to vary or set aside the consent order.

4. The court applied the protection for genuine settlement communications described in Rush and Tomkins v GLC [1988] 3 WLR 939. The restriction was not fact-dependent: it did not matter whether the FDR judge remembered the confidential material or thought it irrelevant after agreement.

5. Goldring LJ explained that Xydhias v Xydhias [1999] 1 FLR 638 did not permit a broader use of without-prejudice material. It allowed that material to be considered to decide whether agreement had been reached, not to decide a later substantive dispute.

6. Lawrence Collins LJ added, obiter, that parties might be able to waive the prohibition by agreement, because that would not undermine the policy of protecting settlement communications. The point did not arise for decision.

• Court of Appeal (Civil Division): Allowed the husband’s appeal and required the outstanding substantive issues to be heard by a judge other than Baron J.

• High Court (Family Division): Baron J ruled that, after making the consent order at the FDR, she could determine the unresolved security issue and the subsequent applications.