FA-FDR - I have lost everything

Hi Fiona,

You wrote:

"The Court of Appeal decided that such an agreement, approved by the FDR judge, but not written down due to insufficient time on the day was an unperfected order of the court. That's an order of the court which need only be entered on the court record. Neither party could be released from an unperfected order and the purpose of the FDR would be lost if the parties were free to analyse and re-evaluate a crucial decision made at the FDR and to decide they had made the wrong choice."

Do you have the case reference please?

The reason I ask is that I would like the 'ratio decidendi' or whatever they call it because on the face of it, and for a self-repper, this goes against the principle of a Consent Order which as I understand it must be made by free will without duress and with the benefit of legal advice.

In the CPR Practice Direction on part40b 3.4 3(b) it states that in the case of a litigant in person the draft consent order must be signed by the litigant in person (CPR Rule 40.6(7)). www.opsi.gov.uk/si/si1998/98313217.htm#40.6
This CPR is Statutory Instrument 1998 No. 3132 (L. 17) and is therefore the LAW - I can't see the basis for the Court of Appeal judgement you mention unless the Consent Order was signed.

Thank you,

YA

Is this it - Rose v Rose appeal ?
www.bailii.org/cgi-bin/markup.cgi?doc=/e...)&method=boolean
There's this in the appeal judgement:
40 However no authority has been cited in this field where a party seeks release between the making of the order in court and its subsequent perfection. In this area Mr Mostyn relies upon the recent decision of this court in Stewart v Engel [2000] 3 All ER 518. There, in the context of civil proceedings, this court held that the judge retained the power to reconsider his conclusion prior to perfection in certain circumstances such as plain mistake on the part of the court; where the parties had failed to draw the court’s attention to a fact or point of law that was plainly relevant; where new facts were discovered after judgment; or where a party had not been given fair opportunity to consider an application which had taken him by surprise. On that foundation Mr Mostyn submits that his client has only to establish exceptional circumstances or strong reasons to prevent subsequent perfection. In effect he submits that his client’s application for release should be decided on Edgar principles. In response Miss Baron suggests that an application to resile between the making and the perfection of the order should be dealt with on much the same basis as an application to set aside a perfected consent order. In my opinion it is perhaps wiser to avoid attempting to state a general principle. Manifestly the considerations identified by this court in Stewart v Engel are likely to have equal application in this specialist field.

Hi DIY,

Maggie is right, the case Fiona refers to is Rose and Rose in 2002. That case was a big money one where both parties where represented all the way through. At the appeal LJ Buxton disagreed with J Coleridge who refused to turn the FDR agreement into a court order then disagreed with N Mostyn QC acting on behalf of the H who wanted to withdraw his verbal agreement made at the FDR.

It shows us what a farce the Law is when such big names disagree between themselves, what chance have we got when faced by the 'ordinary' judges!

J Buxton looks into the purpose of the FDR, placing weight on the FPR rules but totally ignoring the CPR rules (mentioned in my earlier post). Seems like a bloody farce to me.

Anyway, judge Buxton reckons an FDR can have only one of three outcomes:
1 An order adjourning the appointment
2 A consent order disposing of the case
3 Directions for a final hearing

Seeing as 1 and 3 didn't happen at the FDR Buxton mysteriously concludes that no 2 happened. I don't understand why. Clearly there wasn't a consent order under the CPR rules, therefore logically what happened was an order adjourning the appointment!

DIY mate, stick to your guns. You didn't sign anything. Rose and Rose does not reflect your case and you have got to stand so bloody firm on this.

For everyone else, the DAFT judgement of J Buxton where he thinks people under stress in a FDR can be forced into agreeing an order despite the provisions of the CPR, should be borne in mind.

DO NOT AGREE TO ANYTHING AT THE FDR, ASK FOR IT TO BE ADJOURNED FOR A WEEK SO THAT YOU CAN CONSIDER IT.

According to J Buxton you don't need to sign an agreement in order to agree to make it a court order, who knows, perhaps another judge will decide that if you wink it also means you have agreed.

DIY, once again - no agreement signed, outcome of the FDR, an adjourned FDR.

BEST OF LUCK MATE!

YA

YA, Maggie,

thanks for all of the effort and advice you have thrown into the mix here.

At this point, i was mauled at the C1 application under exactly the same circumstances. Wife made an undertaking to the Magistrate not to move with my daughter, nothing signed, so she did so any way, and nothing happened to her.

At this point, i only have the fact that nothing was signed. It is pretty much down to risk vs reward. I am not certain that the risk, (ie that a costs application is made against me and awarded). I cannot afford anymore debt. They will attempt this application.

What do i do now, do i lodge an appeal considering there is no official judgment as yet? Do i wait for instructions from the court? I want to send documents to the court stating my dissatisfaction with the out come, but with no order or judgement confirmed is this premature?

You guys are great for all this assistance.......

Cheers for now.

Hi DIY,

Why not write to the court asking for confirmation a date for the Final Hearing?

Copy this to your xtb. together with an offer for settlement that you think both of you could live with.

You were told, agree to this or you MIGHT get costs awarded against you at a Final Hearing. Such a potential award of costs would only cover those incurred by your xtb from the date of the FDR - a reasonable offer to settle refused by her would go a long way to reducing the possibility of costs being awarded against you.

YA

Rose v Rose may or may not have been a daft judgement but it doesn't change the fact that when an agreement has been reached at the FDR and acknowledged by the Judge, then the agreement is final. The objective is to encourage finality and discourage appeals and applications to be set aside. Unfortunately if consent is withdrawn later, but before the consent order has been drawn up, the court can make a final order noting that it is not a ‘consent’ order.

Of course the order can be challenged if it can be shown a mistake was made and a different order would have resulted had the error not occurred. However, any likely gain needs to be weighed up against the potential of picking up the other sides costs. In this case if each party takes their own car and pension the assets to argue about amount to £26.5k. Given earnings are roughly a third of income and the contributions the new partner makes to his ex's living expenses are outweighed by the fact their D is living with her most of the time I think SM is improbable.

IMHO it would be worth spending money on an hour or so of an experienced solicitors time to find out exactly where you stand and what the options are.


PS You could contact the Court first thing tomorrow and confirm whether or not there is a final agreement.

Another great topic/vast unexplored area there again - what can the court admin officers tell you about your ongoing divorce?
I always used to get: do you have a solicitor ? yes ...only your solicitor can tell you that - I used to wonder if I would have got a lot more info without a solicitor.
After the Consent Order the whole file apparently disappeared back to my solicitor who "archived" it - shouldn't we automatically get a copy from our solicitor?
Because I now realise that hijacking a thread is probably a sin I'm starting a new thread in "Court Preparation"