https://www.civillitigationbrief.

com/2019/01/28/when-the-court-lets-you-down-a-worrying-chronology/
Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester
& Birmingham. 4-5 Gray's Inn Square, London. January 28, 2019 · by gexall · in Access to justice

WHEN THE COURT LETS YOU DOWN: A WORRYING CHRONOLOGY

In BC v BG [2019] EWFC 7 the court rejected an application to set aside an arbitration award made in
ancillary relief proceedings. The application was unsuccessful (and the applicant awarded to pay costs).
However the issue of concern is the chronology that led to the parties electing arbitration, and the wife’s obvious
feeling that this had been forced upon her.

THE CHRONOLOGY

The chronology itself is not unusual. But is something we take readily for granted.

11. A 3 day hearing was listed for February 2018 which was ineffective because
the case could not be accommodated by the court. The 3 day hearing was re-
fixed for 10-12 July 2018.

12. In advance of the July 2018 hearing the parties had served position statements and H had
made an open offer to make maintenance payments to be stepped down from £764 to £382 to
£191 until 2020, together with child maintenance for the younger child until June 2020.

13. The July 2018 hearing was ineffective because the judge was
unavailable due to sickness. The parties understandably felt let down by the court
service and were reluctant to wait several months for a fresh date. On 10/11 July 2018 the
parties signed an arbitration application form on the ARB1 FS form agreeing on arbitration
under the Family Law Arbitration Financial Scheme

THE WIFE’S COMPLAINT

The judge considered the argument that the court should take into account that the arbitration was not truly
“voluntary”. The circumstances under which the arbitration agreement was entered

72. In making her case on supervening events and also mistake W contended that the court should
take into account the circumstances under which the parties entered into arbitration. In
particular, it was said to be relevant that the parties’ hands had been
forced because they had been let down by the court service. It was submitted
that this diluted the “magnetic factor” that would be attached to an arbitration agreement. I
accept H’s argument that the parties had freely entered into arbitration with the benefit of
legal advice. I do not consider that the parties’ concern regarding delay in court hearings
dilutes the significance to be attached to the arbitration agreement. I cannot usefully
investigate the parties’ subjective motives in arbitrating but I can take into account that a
prompt conclusion to the dispute was chosen in favour of waiting several months for a court
hearing.
COMMENT

I accept that there may have been an appeal from a decision made by a judge in any event, however this is
probably less likely. The wife’s costs of the application were £21,000. She did not recover these and was
ordered to pay the husband’s costs to be assessed. There is a worrying concern that all of this could have been
avoided if the court service had not let the parties down in the way it did. (I also accept that it is not the court’s
fault if judges are sick. However there should be a means of obtaining replacements promptly, there is no
shortage of suitable qualified records and deputies). If arbitration, and other forms of dispute resolution, are to
succeed this has to be on the basis of a truly free and informed choice. Not one imposed on the parties because
the courts let them down with basic issues of listing.

2 Responses

1.

Nick Hanning · January 29, 2019 at 11:36:41 · →

I do sympathise about the failures to get the case heard but by all accounts the decision made by the
arbitrator was pretty much what a court would have awarded (not surprising given the experience of the
arbitrator in question).

What I find most striking is that the poor wife spent £21,000 in making an application which cannot
have lasted more than a day. And that’s without solicitors …

2.

Mystery · January 29, 2019 at 11:58:10 · →

I have a case like that. I and my ex-wife agreed a settlement based upon me paying her some money on
her spurious claim for a divorce award. She had been represented up to that point but then got rid of her
lawyers. She filed a form A which was “creative” as to debts and assets (she had dissipated her assets
post separation).

The Court rejected it in Jan 2018. A year follows in which she fails to file her form E and has an order
for contempt and a wasted costs order against her. Eventually she files her form E which makes it clear
that her “debts” don’t exist, and she had sold assets to pay her debts. The DJ hearing the pre-case
review gives her a very clear indication that she has no case and that she is at risk of a hefty costs
award.

To avoid the costs of the final hearing I offer the same amount less the wasted costs. She accepts and
we put the order in again. It has been rejected again (despite the notes on file), and so we now need to
go to the court and explain AGAIN why it is fair, notwithstanding that a different judge has said she is
bound to fail. The woman has no assets and so any costs award against her will not be fulfilled.

ARRRGGGH!! Waste of court time and money, and a large amount of money of mine has been tied up
awaiting this decision, so I cannot move on either.

I am a lawyer myself – albeit not in this field – and I look at it and think it is a joke. Only my lawyer is
laughing, however.