Unidad Ejecutora 006: INABIF

2.1 All rules of court and directions given at the first appointment should be complied with.

2.2 If instructing counsel to represent your client at the FDR, consider with your client arranging a conference with counsel beforehand so that your client will not be meeting counsel for the first time on the day of the FDR; so that counsel can seek any further information required and advise; and so that preparations for the FDR can be agreed. See also the Guide to Good Practice on Dealing with the Bar.

2.3 You should ensure there is a proper schedule of assets and income and where appropriate a ‘net effect’ illustration of offers made. If you are instructing counsel to represent your client at the FDR you should agree with them who is going to prepare these documents.

2.4 Rule 9.17(3) of the FPR 2010 provides that not less than seven days prior to the FDR, the applicant must file with the court details of all offers and proposals, and responses to them. This, in practice, means copies of all without prejudice and open offers should be lodged with the court seven days prior to the FDR. Without prejudice offers/correspondence should then be taken back from the court file at the end of the FDR. They will of course also be included in the FDR bundle if prepared.

2.5 Ideally there should be a concise written summary presentation for the court of the clients’ respective positions. These should be clearly marked ‘FOR USE AT THE FDR ONLY’. This is called a position statement or case outline. Different courts have varied expectations of what is expected, but it is good practice to produce such a document. Again, if instructing counsel, agree with them who is to produce this. A guidance note for drafting a position statement/case outline and a precedent position statement/case outline can be found at the end of this guidance note.

2.6 If counsel is producing the position statement then it should be e-mailed to the instructing solicitor as soon as practically possible and certainly prior to the day of the FDR. The solicitor should forward a copy to the client and obtain their approval (and/or comments). The solicitor should let counsel have their comments on the position statement and the final wording should then be signed off with counsel in sufficient time to allow any necessary amendments. This will

eliminate the all too frequent situation where the client sees the position statement for the first time at court at the FDR and is unhappy with some or all of its contents.

2.7 Rule 2.61E of the FPR 2010 states that, at the conclusion of the FDR, any filed documents must, ‘at the request of the party who filed them’, be returned and not retained on the court file. The onus is therefore on you/your counsel to ensure that no without prejudice documents remain on the court file.

2.8 If you are instructing counsel and there has been no pre-FDR conference you should make clear in your instructions what advice (if any) the client has been given by you. If counsel’s view differs from yours then, wherever possible, you should ask counsel to advise you in advance so that you can pass on counsel’s advice to the client.

2.9 In a case of any complexity it will usually be appropriate for you or a properly briefed assistant to be present, particularly if there has been no prior conference.

3.

At the FDR

3.1 Both parties must personally attend the FDR (r9.17(10) FPR 2010).

3.2 Attend punctually (unless otherwise instructed, one hour in advance of the listed hearing time).

3.3 Even where the listing requires attendance one hour before the hearing to enable negotiations, it is often advisable – particularly when there has been no earlier conference – to start the

conference with the client at court earlier than this so that inter-party negotiations can commence at the designated time.

3.4 Because of the nature of FDRs and the time that needs to be spent with the client, it is advisable that careful thought be given before agreeing to conduct more than one FDR in one day. It is good practice for counsel, if offered a brief from a second firm of solicitors, to expressly seek consent from the first solicitor (and their client) prior to acceptance of the second brief, and that this consent is recorded by the clerks. The second solicitor (and their client) must also, of course, be made aware that counsel has already accepted one brief, and its nature. If you seek to brief counsel for more than one FDR, you should ensure that both clients have been made aware in advance and have consented.

3.5 Explain the nature of the FDR to the client as soon as is appropriate in each case and ensure that they have a good understanding of its nature, process and aims well in advance of the hearing date, ie that the purpose of the hearing is to explore actively whether reasonable settlement may be achieved by agreement. The explanation should include the privileged and ‘without prejudice’ nature of the hearing (and associated negotiations) and that the judge conducting the hearing is not permitted to have any further involvement in the case. You should also explain that the judge ought to give an indication, the weight that must be given to this indication, and its non-binding nature.Explain to the client the benefits of settling so that the costs, stress and delay of a contested hearing may be avoided. Costs implications of both a settlement and progressing towards trial should be explained. This last point is vital since saving costs is a major benefit to clients of settling at FDR stage, and is one which the client readily understands.

3.6 Explain that the client is not bound to settle at the hearing. If they wish to give further consideration to offers of settlement made, subsequently withdraw any offers made but not accepted at the hearing, and/or go to trial then that is their entitlement. It would be perfectly proper to point out the timescale of such a decision and that there would be no finality for several months. Interim arrangements would have to be continued – for example, a party who is not living in the former matrimonial home may have to continue to rent. An application for maintenance pending suit/interim periodical payments may also have to be considered if this has not already been addressed. Ensure that the client understands that the court will expect both parties to negotiate constructively – ie that the offer(s) made in advance of the hearing (and/or the offers formulated at court) are usually expected to be a parties’ opening position rather than their last word. Explain that the court should do more than simply choose between both parties’ positions and, in most cases, will expect negotiations to continue after an initial indication has been given.

3.7 Verify the schedule of assets and liabilities and the position statement with your client, ideally in advance of the hearing date so that if checks are necessary they can be carried out. The client should have the opportunity to check the asset list accords with their understanding. This may only be a provisional schedule if some matters still need clarification, but it should still be done.

3.8 Verify income and earning capacity with the client (again in advance of the hearing date if possible), noting comments on the other party’s assets and income.

3.9 Check that the client understands the current proposals and their net effect.

3.10 Inform the client of any additional or further proposals that could be made, and why they may

or may not be advisable.

3.11 In respect of all offers to be made at court:

• record in summary all offers intended to be made; • ensure that the client is aware of total offer terms; • check that the client agrees and understands such terms; • record the client’s agreement to proposals.

3.12 In respect of proposals made by the other party:

• record any offer made by the other party;

• ensure that the client understands the nature of the offer;

• advise as to whether the other party’s offer should be accepted or not, and why.

3.13 If there are any issues upon which you, counsel or the client are uncertain, or which require

further advice (eg tax or the effect of pension sharing), then the client should be expressly advised as to this and as to the options available. Options include:

• Agree all matters that may be agreed and adjourn the remainder (although this is sometimes difficult to achieve as the other party often refuses).

• Only if the client is clear that they wish to proceed notwithstanding the lack of relevant information or advice should agreement as to these matters be finalised, but this should be recorded and signed by the client.

3.14 Judges may put pressure on parties to settle – for example ‘you’re not leaving this building until

you’ve reached agreement’. Advise the client that they are entitled to pursue their claims or further consider an offer of settlement made by the other party after the FDR notwithstanding such pressure, and inform the judge of the advice given to the client.

3.15 Likewise, if a client wishes to continue to negotiate they are entitled to do so. However, if

negotiations have already continued for several hours (and there is therefore a concern that the client may now only be seeking to reach agreement in order to bring the day to an end) and/or the offer(s) which the client now seeks to put forward (or accept) would go beyond the advice being given by you or counsel, it is considered preferable to advise the client that there is a risk of deciding in haste and repenting at leisure, and that negotiations can continue in inter- solicitor correspondence beginning, if necessary, the following day. If the client wishes to continue notwithstanding this advice, a full note of the advice given should be recorded. Even if an FDR is unsuccessful on the day, a round-table meeting shortly afterwards can prove effective, as both parties will have heard what the judge said at the FDR and this may have redefined their expectations. Such a meeting should be treated in the same careful way as an FDR, particularly in relation to the status of any offers made and ancillary negotiations.

3.16 If no agreement is reached at court, ensure the client is aware that offers made during the FDR

appointment cannot be relied on subsequently (for example in relation to making or resisting an application for costs) unless the offer(s) are re-stated in open correspondence after the

appointment. If an offer is expressly left open for acceptance, it can subsequently be withdrawn at any time prior to its acceptance by the other party.