BUSINESS AND PROPERTY (including Contentious Probate and Trusts)
Alternative Dispute Resolution (ADR) has become a key feature of the dispute resolution landscape. ADR, which includes Private Financial Dispute Resolution, is an accommodating way of resolving disputes, thereby avoiding the need to attend Court and the associated costs of litigation.
Even if the dispute is not fully resolved in ADR, some of the live issues may be settled or narrowed. Moreover, even if ADR itself is unsuccessful and the matter proceeds to trial, under the Civil Procedure Rules 1998 the losing party may be afforded some costs protection.
In many kinds of claim, formal litigation through the courts should be viewed as an option of last resort. Litigation can be costly and acrimonious, often resulting in an outcome which is not of full satisfaction to either party.
Financial Dispute Resolution hearings (FDRs) have long been a feature in the context of financial remedies proceedings in the family law jurisdiction. The Chancery Guide has now made detailed provision for a “Chancery FDR”.The FDR appointment is ‘without prejudice’. This means it is held before a Judge who must have no further involvement with the case should it proceed to final hearing.
Recent times have seen the emergence of ‘private’ FDRs. The former President of the Family Division, Sir James Munby has stated, “a private FDR is a simple concept. The parties pay for a financial remedy specialist to act as a private FDR judge. That person may be a solicitor, barrister or retired judge. No additional qualification is required. The private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers’ chambers, and a full day is normally set aside to maximise the prospects of settlement. It takes the place of the in-court FDR” [link]. Most cases settle at FDR stage. Anecdotally, Private FDRs have been extremely popular and successful in facilitating settlement.
Experienced members of Three Doctor Johnson’s Buildings offer Private Chancery FDRs in a range of matters including claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
Common types of claim under TOLATA include:-
- Property disputes between cohabitants
- An unentitled claimant asserting a beneficial interest in a property, for example where a parent has contributed money towards their child buying a property as sole proprietor
- There is a dispute between co-owners as to whether the property should be sold
- Where a property is held by parties as co-owners and a dispute arises over their respective beneficial shares.
3DJB also offer Private Chancery FDRs in contentious probate disputes, such as disputes arising under the Inheritance (Provision for Family and Dependants) Act 1975; and in trusts disputes.
Our clerks can arrange Private Chancery FDRs in Chambers or at a location to suit the parties. In the setting of the current Covid-19 pandemic, it may be that FDRs are held either: (a) exclusively virtually, so that all parties and their representatives attend via a video platform; or (b) in a hybrid format so that, for example, the Claimant and their representative/s are physically present at one location with access to a video platform and the Defendant and their representative/s are physically present at a different location with access to a video platform.
Our clerks can also advise professional and lay clients on the appropriate specialist to conduct these hearings please contact them at firstname.lastname@example.org.