Court of Appeal
Published January 7, 2009
Myerson v Myerson
Before Lord Justice Thorpe, Lord Justice Lawrence Collins and Lord Justice Goldring
Judgment December 11, 2008

A judge who had made an order, by consent, at the conclusion of a successful financial dispute resolution, could not then decide subsidiary issues on which the parties had subsequently failed to reach agreement.

The Court of Appeal so held when allowing an appeal by the applicant husband, Brian Myerson, against the decision of Mrs Justice Baron on November 17, 2008, that she could proceed in the contested ancillary relief proceedings, having already heard the financial dispute resolution between him and the respondent wife, Ingrid Myerson.

Rule 2.61E of the Family Proceedings Rules (SI 1991 No 1246), as inserted by rule 6 of the Family Proceedings (Amendment No 2) Rules (SI 1999 No 3491), provides: “(2) The district judge or judge hearing the [financial dispute resolution] appointment must have no further involvement with the application, other than to conduct any further [such] appointment or to make a consent order or a further directions order.”

Mr James Ewins for the husband; Mr Simon Webster for the wife.

LORD JUSTICE THORPE said that the husband’s submission that the crucial words within rule 2.61E(2) were “the application”, and they could only mean the application for ancillary relief, was right.

The underlying policy of the sub-rule was clear. Litigants distrustful of each other and made anxious by the complex tactics of contested litigation had to be confident that conciliation within the court proceedings guaranteed them the same confidentiality that they would enjoy had the dispute been referred by the judge to mediation by a mediation professional.

The intention and the meaning of the sub-rule were clear. The judge who had been armed to conciliate by the provision of all the privileged communications could only do one of three things, that was to say: set up a further financial dispute resolution appointment, make a consent order or make an order for further directions, practically speaking, directions for trial.

Where the contract presented to the judge at the conclusion of the financial dispute resolution was incomplete in the sense that there were subsidiary or peripheral issues to be agreed, or determined by the court in default of agreement, that could not be referred to the financial dispute resolution judge for determination.

Where, as here, the parties did not reach agreement as to the nature and extent of the security, the dispute was to be listed before another judge. So too, issues of enforcement were to be listed before another judge. Equally, subsequent applications to vary or set aside the consent order achieved at the financial dispute resolution appointment were to be listed before another judge.

Lord Justice Lawrence Collins and Lord Justice Goldring delivered concurring judgments.

Solicitors: Mills & Reeve LLP, Leeds; Sears Tooth.

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