Arbitration of TOLATA disputes: Why would anyone now choose to litigate?
Sep 29, 2018, 21:58 PM
family law, arbitration, collaborative law, mediation, LASPO, legal aid, TOLATA, divorce, financial remedies
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Arbitration of TOLATA disputes: Why would anyone now choose to litigate?
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family law, arbitration, collaborative law, mediation, LASPO, legal aid, TOLATA, divorce, financial remedies
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Date :
Jul 18, 2014, 02:42 AM
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106423
The doubters as to the efficacy of IFLA family arbitration
in the financial remedy context need look no further than the case of
S v S (Financial Remedies: Arbitral Award) [2014] EWHC 7 (Fam),
[2014] 1 FLR 1257 for
confirmation by the President of the Family Division that financial remedy
arbitral awards should be converted into court orders.
This note is not concerned with financial remedy cases however;
rather, disputes which must be resolved by way of litigation pursuant to the
CPR in the TOLATA and Inheritance (Provision for Family and Dependants) Act
1975 context. These disputes, often with all the attendant stresses of ‘a
family case’ are played out under an entirely different procedural code where
‘costs follow the event’, in an open court,
wigs and all.
The litigation
landscape
Since April 2013 the ‘Jackson’ reforms have made conducting
any civil litigation an altogether chillier experience. Mandatory costs’
budgeting and the unforgiving approach
to relief from sanctions, pursuant to the new CPR 3.9 as applied by the case of
Mitchell v News Group Newspapers Limited
[2013] EWCA Civ 1526 et al, have made
civil litigators despair as to the civil courts’ current approach.
The IFLA alternative
The Institute of Family Law Arbitrators’ (IFLA) scheme
is available for the resolution of
TOLATA and I(PFD)A disputes (see IFLA Art 2.2). The 2014 IFLA rules contain a
basic procedural code which allows the parties and the arbitrator, should they
so wish, to adopt a ‘civil style’ to the dispute, by providing for statements of case,
disclosure and witness statements (IFLA Art 10.3) rather than the more ‘family’
approach of ordering Form Es etc (which is also available should the parties so
wish). The starting point is that each party will bear their own costs (Art
14.4(b)) ‘unless otherwise agreed by the parties’ at the outset of the
arbitration. This presumption against ‘costs following the event’ is subject to
the discretion of the arbitrator to make a costs award on the grounds of ‘conduct’ before or during
the arbitration (Art 14.5(a)). The ‘costs follow the event’ presumption can
strike real anxiety into both sides at the outset of civil litigation and often
appears harsh and out of place when dealing with these civil/family hybrid
cases. The ability to start with a ‘no order as to costs’ presumption, it is
respectfully submitted, feels more appropriate in the family context.
Publicity
There is then the issue of publicity, something in which the
President takes a keen interest in the context of the Family Court. Despite
this, to date, the decision of Holman J in
Luckwell
v Limata
[2014] EWHC 502 (Fam), [2014] 2 FLR (forthcoming and reported at
[2014] Fam Law 792 - where His Lordship gave 3 hours’ notice
that he intended to hear the case in public pursuant to FPR 2010, r 27.10(1)(b) with judgment later being promulgated in a
non-anonymised format) is something of a novelty in the financial remedy
context. Not so TOLATA, where justice before the courts must be seen to be done:
W v M (TOLATA Proceedings: Anonymity)
[2012] EWHC 1679 (Fam),
[2013] 1 FLR 1513, per Mostyn J. Anyone with experience
in this area will be aware of the shadow cast by the prospect of a public trawl
through the intimate affairs of a family. As Mostyn J stated in
W v M, this can easily be avoided by
recourse to ‘the much-to-be-welcomed scheme promoted by the Institute of Family
Law Arbitrators.’
Court support for arbitration
There are perhaps two main concerns for those contemplating
arbitration over litigation: (1) Will the court enforce an arbitration
agreement by staying any competing legal proceedings, and (2) will an
arbitrated award be enforceable like a judgment?
In the financial remedy context, any attempt to wriggle out
of an agreement to arbitrate is likely to be met by the court enforcing a
stay/adjournment of the legal proceedings
(and with the making of an Ungley type Order) to allow the arbitration to proceed (see
Mann v Mann [2014] EWHC 537 (Fam), [2014] 2 FLR (forthcoming and reported at
[2014] Fam Law 795) per
Mostyn J at paras [25] to [29]). Also note FPR 4.1(3)(g), giving the court a general
power of stay, which was not considered by the court in
Mann. As to the enforcement of the ultimate award, see
S v S.
However, in the civil context, beyond the (considerable)
supervision and support afforded by the court pursuant to the Arbitration Act
1996
[i], there
is no further ‘paternalistic’ overview
by the court or provision comparable with s.34(1)(a) Matrimonial Causes Act
1973.
As noted by the Law Commission in its recent report on
Matrimonial Property, Needs and Sharing (No 343), it has yet to be
authoritatively resolved whether s 9 of the Arbitration Act 1996 applies to financial
remedy proceedings
[ii]. Section 9 provides for a
mandatory stay of legal proceedings commenced in breach of an
arbitration agreement. The debate will be, in an appropriate financial remedy
case, as to whether s 9 of the Arbitration Act 1996 trumps s 34 of the Matrimonial Causes Act
1973 by requiring a
mandatory stay.
To date, both the dicta of Nicholas Francis QC, sitting as a deputy High Court
Judge, at para [37] of
T v T (Hemain Injunction) [2012] EWHC 3462 (Fam),
[2014] 1 FLR 96 and the learned
authors Richard Todd QC and Elisabeth Todd at 2-073(d) in ‘Todds’ relationship
Agreements’ (Sweet & Maxwell) suggest
that this is by no means a foregone conclusion in favour of s 34 of the Matrimonial
Causes Act 1973. In any event, the Family Court retains a
discretionary (as opposed to mandatory) power to order a stay of
legal proceedings: See
Mann and FPR 2010, r 4.1(3)(g). Further, the decision of the Supreme Court in the commercial
arbitration case of
AES Ust-Kamenogorsk
LLP v Ust-Kamenorgorsk JSC
[2013] UKSC 35, when analysing the relationship
between the Senior Courts Act 1981 and the Arbitration Act 1996, suggested that
discretion exercised pursuant to the SCA 1981 should ‘[60] ... be exercised sensitively and ...
with due regard for the scheme and terms of the [Arbitration Act 1996] when any
arbitration is on foot or is proposed.’ The Court of Appeal in that case went
further, suggesting that the AA 1996 and the SCA 1981 should each influence the
application of the other. It will be interesting to see whether this reasoning
is applied analogously, when considering the relationship between the Matrimonial
Causes Act 1973, s 34 and the Arbitration Act 1996, s 9.
However, in the TOLATA context, there is no s 34 voiding
provision to argue about. Section 9 will be
applied and any attempt to circumnavigate the arbitral process by issuing legal
proceedings will be met with a mandatory s 9 stay.
Upon the making of the award in the TOLATA context, the
award will bind the parties and there will be no need for reflection into a
court order to invoke a clean break or pension sharing order type
provisions. The only occasion when a
civil award will require reflection into an order is if enforcement becomes an
issue. It is trite that the arbitral tribunal has no powers of enforcement and
the award can simply be summarily enforced as a judgment of the court using
s 66 of the Arbitration Act 1996.
A compelling case for
arbitration?
Family arbitration, absent of costs’ budgets, publicity,
adverse costs orders and
Mitchell style case management, must
surely make IFLA arbitration a choice worth careful consideration. The advantages
include the parties’ choice of a specialist tribunal with their date and venue
of hearing, privacy, speed of process and ease of access to their tribunal for
case management purposes.
There is, incidentally, no impediment to an arbitrator and advocate
being drawn from the same chambers (see
Laker
Airways v FLS Aerospace Ltd and Stanley Burton
[2000] 1 WLR 113 and
A and others v B and another [2011] EWHC
2345 (Comm)).
[i] Sections 42 – 45 (powers in support of arbitral
proceedings) and ss 66 – 71 (powers of the court in relation to the award).
For a detailed explanation of how these provisions work in the civil context,
see article by Karen Gough (Past President of Chartered Institute of
Arbitrators) at
http://www.familyarbitrator.com/family-arbitration/judicial-supervision-support-arbitration
[ii] Paragraph 7.43
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