The power of Ungley orders
When faced with tactical delaying in family law proceedings, the spectre of a judicial order to explain why NCDR processes are being declined can be a powerful tool
Over a year has passed since the rules requiring parties to give proper consideration to non-court dispute resolution (NCDR) strengthened. Codified in the amendment to part 28 of the Family Procedure Rules (FPR), the court now “must” take into account a party’s failure to meaningfully engage with NCDR (its definition widened to include not only mediation, but arbitration, ENE and collaborative law) when it comes to costs in financial remedy proceedings.
While this threat of cost sanctions has proved to be a valuable tool in our money cases, we are left significantly less “equipped” in our private law children cases, where cost orders are much rarer and harder to obtain. What, therefore, remains in our arsenal as children practitioners where one party is failing to give proper consideration (as they are obliged by the law) to NCDR?
One of the many 29 April 2024 amendments to Part 3 of the FPR requires the court to give proper consideration as to whether or not a valid MIAM exemption had been claimed. If the court finds that a MIAM exemption has not validly been claimed, it has the power to adjourn proceedings and direct the applicant/the parties to attend a MIAM. Gone are the days where an applicant could issue proceedings by simply ticking a box to say an exemption applied. Exemptions are more limited, must be claimed genuinely, and the court must give consideration to this at the first hearing.
NCDR in family law proceedings is rooted in voluntary engagement and so the fact remains – and will continue to remain – that nobody (lawyers or the court) can do anything to force an unwilling litigant to play NCDR ball after MIAMs have been attended. (In civil proceedings, the Court of Appeal has found that the court may lawfully order parties to engage in NCDR in certain circumstances. This is not yet the position in family proceedings – see Knowles J in X v Y [2024] EWHC 538 (Fam) – but if the 29 April 2024 changes do not see a significant reduction in the workload in Family Courts, mandated NCDR is anticipated to be considered in family proceedings also.)
But the above does not mean that in circumstances where mediation has been attempted but unsuccessful, the obligation to properly consider other forms of NCDR is discharged. One cannot simply throw in the towel after a singular attempt. Mediation is rarely successful in cases where the issues are binary and the parties are entrenched in their positions, but this should not mean that further consideration should not be given to arbitration/ENEs etc.
It is an unfortunate truth that such refusal can form a powerful tactical tool in children proceedings where time is of the essence. If delay serves one party’s case, as it often does in an application to relocate a child overseas (particularly if the relocation application is made following a failed application for summary return), then declining arbitration and relying on the family court’s severe delays can give one parent a potentially very significant strategic advantage. The benefits of arbitrating these exact applications are extensive and well known to all family practitioners.
Ungley orders
It is important to keep in mind when such tactics are employed that whilst the court cannot force NCDR, they can strongly encourage it. An Ungley order, named after the Master of the Supreme Court Queen’s Bench Division (QBD) from 1997 to 2008, originated in the QBD and was introduced as a concept into the family court first by Mostyn J in Mann v Mann [2014] EWHC 537 (Fam). The case involved an enforcement dispute between parties who had signed an agreement to mediate. Mostyn J found that whilst he could not compel the parties to engage in the mediation, he could robustly encourage them by means of an Ungley order:
“i) If either party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the enforcement proceedings, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.
ii) The party considering the case unsuitable for ADR shall, not less than 7 days before the commencement of the adjourned enforcement hearing, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable.”
Whilst ultimately the purpose of an Ungley order is to have a statement to consider when making a decision on a costs sanction for an unjustified/unreasonable refusal to engage in NCDR, the mere threat of being forced to nail one’s colours to the mast in a witness statement should not be overlooked as a useful tool. If an opponent’s refusal to arbitrate is tactical, then the idea of being required to set out their position in black and white will be unpalatable.
If proceedings have been issued (to invoke the backstop of a court timetable), and arbitration proposed and refused, then an interim application requesting a direction that the other side be required to file a witness statement setting out in detail their reasons for refusing to engage in NCDR should be made. (The introduction of the FM5 in April 2024 has meant that parties are of course now required to set out in brief their position on NCDR with a signed statement of truth prior to the first on-notice hearing in the majority of private children and finance cases.) The application requesting a direction will bring the tactical position to the forefront of the judge’s mind at the start of any hearing, and makes use of the power of judicial “robust encouragement”, as Mostyn J puts it.
This exact application was recently made in an international relocation case of ours. Requiring a decision before a critical school year of one of the children, the respondent was refusing to accept our proposal to arbitrate, as delay and the status quo suited their position. They said arbitration was unaffordable and that the parties should instead return to mediation, where an internal relocation could be discussed (ie where our client’s external relocation application would be ignored). This position remained despite our client subsequently offering to solely bear the costs of the arbitrator, and pointing out 18 months of court proceedings would cost much more. Helped by the emphasis given on issue by our Ungley application, at the FHDRA the judge applied pressure on the respondent to agree to the arbitration as it was without doubt in the best interests of the children for the issue to be resolved as soon as possible. The respondent’s position came undone, and arbitration was agreed following the hearing.
So, whilst the Family Court cannot force NCDR, there are still remedies available to those who are on the receiving end of delaying tactics. An overworked judge in an overburdened Family Court system is never going to be impressed by a litigant who wishes to rely on the crumbling system for a tactical advantage, particularly to the clear detriment of children. It bears remembering that the 29 April 2024 amendments were introduced primarily to alleviate the unsustainable pressure that the family court system is under, so a judge will undoubtedly be keen to support any party who proposes to remove one more case from the list.