BC v BC [2025] EWFC 236: Reported: 30 July 2025.
Peel J granted the wife’s application to exclude certain words from the husband’s open proposal made shortly after the pFDR as they were confidential material covered by pFDR privilege.
BC v BC [2025] EWFC 236: The background
At a First Appointment, the parties agreed to attend a 2-day pFDR. This was approved and recorded in the order.
On 28 July 2025, the wife applied to exclude or redact certain parts of the husband’s open proposal sent after the conclusion of the pFDR which made reference to confidential material covered by pFDR privilege. The application was made to a judge other than the allocated trial judge.
The open proposal starts with the following paragraph (the disputed words are in bold):
“We write further to the first day of the private FDR before [the pFDR evaluator] yesterday. Of course, today would have been the second day of the hearing were it not for your client’s retrograde decision to leave the building yesterday, not thirty minutes after receiving [the pFDR evaluator’s] written indication”.
In the penultimate paragraph, the husband wrote (disputed words in bold):
“[H] hopes very much that, despite [W’s] impulsive decision to end the pFDR process so immediately yesterday, some sense will now prevail”.
Parties’ Positions
The wife asserted the words breached pFDR privilege and that the intention was to prejudice the trial judge against the wife by implying a lack of willingness on her part to negotiate after the indication.
The husband stated that the letter made no reference to the detail of the offers made during the process not to the pFDR evaluator’s indication. The disputed wording, they argued, applied to “logistical details”.
The Law
FPR 2010 r9.17 notes that the “FDR appointment must be treated as a meeting held for the purposes of discussion and negotiation”.
Para 6.2 of FPR 2010 PD9A reads as follows:
“In order for the FDR to be effective, parties must approach the occasion openly and without reserve. Non-disclosure of the content of such meetings is vital and is an essential prerequisite for fruitful discussion directed to the settlement of the dispute between the parties. The FDR appointment is an important part of the settlement process. As a consequence of Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231, evidence of anything said or of any admission made in the course of an FDR appointment will not be admissible in evidence, except at the trial of a person for an offence committed at the appointment or in the very exceptional circumstances indicated in Re D.”
Peel J referred to GH v GH [2024] EWHC 2547 (Fam) in which he noted the benefits of the FDR process [5]. In particular, Peel J notes “even the most intractable case can yield to settlement at the FDR” and “It is often those hard cases where one or other party appears utterly intransigent that the FDR judge’s indication and observations can be of greatest utility”.
Peel J further noted that the pFDR practice was endorsed by the President’s Circular: Financial Remedies Court Pilot Phase 2, 27 July 2018 (paras 7-11) and the benefits were recognised by both practitioners and judges (as stated by Mostyn J in AS v CS [2021] EWFC 24 [14]).
Analysis
Peel J emphasised that the pFDR process must operate by the same principles as the court FDR as:
- it is hard to see why the court FDR hearing should be disapplied if parties simply elect an entirely different process governed by different principles and
- the FDR principles of confidentiality and frankness underpin the ethos of the FDR.
Peel J accepted that basic factual details of the FDR or pFDR are ordinarily disclosable, including:
- Whether or not it took place and, if so, whether both parties attended. This is important for the court when considering whether to make a costs order.
- The identity of the pFDR evaluator and the legal teams.
- The location of the pFDR.
- The length of the pFDR.
Peel J reiterated that the standard draft order does not require the parties to inform the court about the content of the pFDR or the behaviour of the parties and that the obligation on the parties is to comply in a neutral way to inform the court as to whether the pFDR exercise has been undertaken.
Peel J rejected the view that the court was entitled to know that offers were made and that an indication was given as suggested in the Financial Remedies Court – Primary Principles, of 11th January 2022.
What have we learned from BC v BC [2025] EWFC 236?
Peel J determined that the highlighted words should be deleted from the open proposal for the following reasons:
- The integrity of the FDR and pFDR process is to be respected. There should be no disclosure of the words or conduct of either party during the FDR. If parties cannot be confident of the confidentiality of the process, there is a risk the FDR process will be undermined.
- The husband goes beyond stating simply whether offers were made and an indication given. He describes how the pFDR came to an end and the portrayal of the wife’s alleged responsibility for it ending.
- The words are capable of being interpreted as critical of the wife’s approach to the FDR and draw a link between the indication and her leaving the building. Whether this is justified is impossible to know without understanding the nuances of the pFDR process.
- It is not incumbent on either party to explain why they approached the FDR/pFDR in a particular way, including why they decided to end it after the indication has been given. This would risk satellite litigation as has happened in this case.
Peel J emphasised that the integrity of the FDR and pFDR process requires full respect for confidentiality. What is said and done at the FDR/pFDR cannot be subsequently deployed by either party.
Additional observations on BC v BC [2025] EWFC 236
The combined costs for this application was £37,000. It was noted that this was a “startling sum” to be spent over 46 words(!).
Peel J concluded with a warning to parties [30]:
“I was told that there is, or may be, a practice developing of parties attending a court hearing after the pFDR, and one blaming the other for the pFDR coming to an end, in particular asserting that the pFDR ended when the other party left after the indication without further negotiating. If there is such a practice, in my view it should cease.”
The full judgment can be found here.
This blog was written by Sofia Santos, who practices in all areas of family law. Please get in touch if you have any additional questions and we will be pleased to help you.
