Private Court Hearings

If no agreement is reached through the methods I have described, there is another option to consider before resorting to making a court application. Increasingly, parties are instructing a “private judge” to make decisions on financial and children matters.

This could be in a private FDR (Financial Dispute Resolution) which is for finances only or a private ENE (Early Neutral Evaluation) for children matters or in arbitration (which can address both the finances and any arrangements for the children).

The private FDR or ENE is a “without prejudice” hearing at which both parties are usually represented by barristers and which takes place in barristers’ chambers or at the solicitors’ offices. The parties pay a barrister or solicitor to be the “private judge”. Unlike in the court system where judges are pressed for time and there are long waiting lists, a private FDR can be arranged in a matter of weeks and the parties are guaranteed that the private judge has had plenty of time to read the papers in full. At the private FDR or ENE the private judge hears arguments on both sides but not usually oral evidence from the parties direct and gives an indication of the sort of order he or she would make if this was a final hearing. The parties then negotiate through their barristers and solicitors that day and try to reach an agreement. If they reach an agreement, this can be made into a court order.  

Arbitration is like a private final hearing, which again is held at barristers’ chambers, the solicitors’ offices or the Institute of Arbitration.  The parties will often give evidence orally and be asked questions by each other’s barristers. The arbitrator will make a ruling and the parties are bound by it. The ruling can then be put into the form of an order and lodged at court.

As you can see, there are many options to consider before making a court application in your financial or children case.  It is usually always better to reach an agreement outside court. The latter should be a last resort in virtually every case. This ensures that each party’s costs are kept to a minimum and decisions on their future can be taken in an environment conducive to prioritising the family and keeping the conflict in any separation to a minimum.