Arbitrate Me Baby

Apparently, in relation to a post-award consent order lodged at a county court, the solicitor for one of the parties requested a judicial view on the question:

‘What effect should the fact of an arbitration award have on the exercise of judicial discretion in deciding whether to approve the terms of a Consent Order.’

The Designated Family Judge of that court it seems, responded as follows (giving his express permission to quote the following):

‘The fact of the arbitral agreement and award must have some effect on the exercise of discretion. The parties have entered voluntarily into an agreement for binding arbitration under English Law, which includes an agreement to submit any required consent application for an order giving effect to the award. It must ordinarily be the case that this must be conduct which it would be inequitable to disregard, and unless there were some vitiating factor or obvious unfairness along Edgar lines, the court should uphold the agreement, provided of course that it is drafted in terms that are capable of being an order of the court under MCA Part II.

In the training around the implementation of the scheme, it has been suggested that a judge invited to approve a consent order in these circumstance should normally do so unless the award was clearly outside reasonable bounds. I am aware that the consensus is that the award need not be subject to detailed scrutiny, other than to ensure that the award is workable and the court can achieve the effect of implementing the award, i.e. has the power to make it. (I am told that it quite frequently occurs that consent applications have to be returned for those reasons.) 

It would be important for the court to establish whether there are any current proceedings, and whether a Decree Nisi had been made. If not, the court would have to return an application pending receipt of Decree Nisi.

It also follows that it would be important to file with the application (as the parties have helpfully done in this case) information about the arbitration award and the agreement that has led to it, together with the statements of information (Form 81)’

Jolly good. Arbitrators will be clapping gleefully, and no doubt offering it as reassurance that the court’s approach in such a situation is likely to be to support the award as an exercise of party autonomy, rather than to play the part of a forensic ferret and sniff out ways to unpick it. An alternative, but perhaps not sufficiently nuanced or sophisticated view (i.e. mine) is that it is no more than a statement of the bleeding obvious (with respect).

But it is of course rather odd to be quoting disembodied judicial remarks in this way which do not form part of any public judgment. This necessarily lessens the weight we can place upon them – whilst these remarks are not a judgment and we therefore should resist the temptation to treat them as such, the fact remains we don’t know the context of this case. Very counter-intuitive. And – more importantly – we don’t know the identity of the judge, whether other judges share her / his view (or if they would in the circumstances of any particular case). This kind of judicial approval is precisely what exponents of arbitration have been hoping for, to assuage practitioners’ anxieties that courts might be obstructive when orders to reflect an award are sought. Such judicial comment as there has been on IFLA and its scheme thus far has been positive (a few obiter remarks for example in a Baker J judgment) – does this take us much further? It’s better than a slap in the face of arbitration with a wet fish I suppose…

So whilst it feels uncomfortable to quote judicial (extra-judicial) remarks in this unattributed way it is, I suppose, a necessary corollary of the principle of confidentiality which is one of arbitration’s fundamental tenets, and (it is said) a major draw for many “big name” parties. Hence it is unsurprising that the court was asked to approve dissemination on the express basis that nothing would be disclosed about the parties, the arbitrator or the subject/outcome of the award, the lawyers involved or the location of the court/identity of the DFJ.

It appears that family arbitration is a part of the future of our justice system, whatever your views about a twin track system of justice may be.

PS Do not ask my source, I could tell you but I’d have to kill you.

PPS I am sitting in my garden blogging by candlelight – which is a rarity on a number of levels – enveloped in post-Murray, end of a summer day fuzziness (and mosquitos). I’m just incapable of a serious blog post tonight. Apologies.

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5 thoughts on “Arbitrate Me Baby

  1. Arbitration of financial disputes is likely to take the place of financial remedy proceedings. On almost every level – cost, time, speed, simplicity of process, choice of adjudicator – arbitration is preferable. Since the Arbitration Act 1996, courts have been intent and adept at upholding arbitral awards. Judges will find every way to do the same for financial remedy awards. Mostyn J in W v M (a TOLATA case) at para 70 sounded the fanfare. Soon the rest of the bench will be getting in tune.

  2. Sorry Pink Tape, I should have posted the reference for W v M : http://www.bailii.org/ew/cases/EWHC/Fam/2012/1679.html

    “Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in financial remedy proceedings by virtue of the much-to-be-welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed”.

    • Thanks for the link – I had that case in mind but couldn’t be bothered to look it up last night!

  3. Lucy, you wrote:’we don’t know the identity of the judge, whether other judges share her / his view (or if they would in the circumstances of any particular case)’. Dare I say these points, while true, are not to the point. For this ‘authorised version’ is not holy writ: it’s no more (but that’s quite a lot)than the point of view clearly expressed after consideration by this DFJ for himself (big clue there!)and the other judges at his court (to whom as I understand it he circulated his letter).

    But as you point out this dictum, while it cannot amount to a diktat, is further evidence of the progressive acceptance by family courts of personal autonomy as a principle with which to reckon.

    And while you arbitrate the baby (point of information: financial not child welfare issues are alone arbitrable under the IFLA Scheme), don’t throw it out with the bathwater. The other valuable points which emerge are the reminder that the D81 must be lodged with a consent application, and that for MCA orders you need D/N first, and to draft in conformity with the court’s powers…

  4. I go further. If two adults, both legally advised, reach agreement on ancillary relief their agreement should be as final as an order of a judge after a contested hearing from which there was no appeal. Just like in other claims.

    And Barder (which is the perfect example of a hard case making bad law) should be abrogated by statute and replaced by a provision that a capital order (which includes the dismissal of claims for periodical payments) cannot be varied by reason of a subsequent change in circumstances except the death within one year of either party or of a child of the marriage (that period to be extendable if and only if the news of the death has been concealed from the other party) and then only if an application is made within three months, not extendable, of the death (or of the death becoming known if concealed).

    It is high time the family courts treated adults as adults.

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