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.

  1. 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.
  2. 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.
  3. 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

  1. 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.