Shokrollah-Babaee v Shokrollah-Babae

A judge who has conducted a financial dispute resolution appointment is mandatorily precluded from further involvement in the application, subject only to the exceptions stated in the rule. The prohibition extends beyond the substantive financial remedy hearing to later enforcement and variation applications. Parties cannot presently waive the prohibition by agreement, even where a later hearing has begun and substantial costs have been incurred. The purpose of the rule is to protect the confidentiality of privileged and without-prejudice communications made during the FDR and to give parties a reliable guarantee that the FDR judge will not later adjudicate their dispute.

The parties’ highly contested financial remedy proceedings resulted in a complicated order requiring, among other matters, periodical payments. Subsequent cross-applications concerned enforcement, committal, passport impounding, asset sales and variation of the order.

Those applications were listed before Mr Justice Holman, who had conducted an FDR appointment for the parties in December 2017. The issue arose only after the hearing had substantially commenced. Both parties urged the judge to continue, relying on the costs and practical prejudice caused by restarting the hearing. The central question was whether Myerson v Myerson and rule 9.17(2) permitted the prohibition to be waived.

1. Mandatory prohibition. Rule 9.17(2) of the Family Procedure Rules 2010 uses the word “must”. It therefore imposes a mandatory obligation on the court and excludes judicial discretion to relax the prohibition.

2. Scope of the rule. “The application” in rule 9.17(2) is not confined to the original substantive financial remedy proceedings. The rules define financial remedy broadly to include a variation order. Consistently with the purpose of the FDR procedure, the prohibition extends to working out, enforcement and variation of the substantive order.

3. Authority of Myerson v Myerson. The Court of Appeal’s decision, reported at [2008] EWCA Civ 1376 and [2009] 1 FLR 826, established that the FDR judge may conduct a further FDR, make a consent order or make a further directions order, but must not determine disputed subsidiary issues, enforcement or later variation applications. Although the observations concerning enforcement and variation were technically obiter in that case, they were binding on the judge.

4. Waiver. The observations of Lawrence Collins LJ and Goldring LJ in Myerson v Myerson concerning possible waiver were obiter and did not permit this first-instance court to develop an exception. Subsequent waiver by consent would undermine the confidentiality guarantee and the mandatory language of rule 9.17(2). The overriding objective did not alter that conclusion.

5. Disposition. The judge was disqualified from further involvement. The hearing was halted. All statements and indications made during it were treated as nullities, and the applications had to be reheard from the beginning before another judge.