Family Law Hub

Rose v Rose [2002] EWCA Civ 208

  • B1/2001/2383

    Neutral Citation Number: [2002] EWCA Civ 208

    IN THE SUPREME COURT OF JUDICATURE

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE HIGH COURT OF JUSTICE - FAMILY DIVISION

    (MR JUSTICE COLERIDGE)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Wednesday, 20 February 2002

    Before :

    LORD PHILLIPS - THE MASTER OF THE ROLLS

    LORD JUSTICE THORPE

    and

    LORD JUSTICE BUXTON

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    Between :

    JULIA CAROLINE ROSE

    Appellant

    - and -

    JONATHAN HUGH ROSE

    Respondent

    - - - - - - - - - - - - - - - - - - - - -

    (Transcript of the Handed Down Judgment of

    Smith Bernal Reporting Limited, 190 Fleet Street

    London EC4A 2AG

    Tel No: 020 7421 4040, Fax No: 020 7831 8838

    Official Shorthand Writers to the Court)

    - - - - - - - - - - - - - - - - - - - - -

    FLORENCE BARON QC and DEBORAH BANGAY

    (instructed by Radcliffes of London SW1P 3SJ) appeared for the appellant

    NICHOLAS MOSTYN QC and LEWIS MARKS

    (instructed by Charles Russell of London EC4A 1RS) appeared for the respondent

    - - - - - - - - - - - - - - - - - - - - -

    Judgment

    As Approved by the Court

    Crown Copyright (c)

    THORPE LJ:

    1. Mr and Mrs Rose married on 19 September 1984. They have since been divorced but for convenience I will refer to them as the husband and the wife. From their marriage there are two children, a girl of 16 and a boy of 14. Both attend well known London day schools. The parties separated, partially in February 2000 and completely in September 2000. The divorce proceedings, at first contested, were compromised, a decree nisi being pronounced on the husband's cross petition and made absolute on 21 February 2001. At the time of this skirmishing the husband sought injunctions to restrain the wife from molestation and from bringing the party cited into contact with the children. In support of these applications the husband filed extensive evidence in which he dealt with the wife's conduct and character according to his perceptions.

    2. However the real issue between the parties was the price to be paid by the husband for a clean break. A sensible agreement had been reached between the parents for a joint residence order under the terms of which the children shared their time between the former matrimonial home in Chelsea Square and a temporary home that the wife had rented in the vicinity.

    3. The financial issue was created by the extent of the husband's fortune. In the most general terms he had outright ownership of assets approaching £7.5M and in addition he and his sister were equal beneficiaries in a family settlement worth just over £12M. Having regard to the fact that other family trusts, worth about £10M, had been accelerated to benefit the children of the marriage it was not unrealistic to regard his half share in the trust which he shared with his sister as being effectively his money.

    4. The wife initiated her financial claim on 17 March 2000. Forms E were exchanged on 18 May. The husband's Form E did not make conduct an issue. Accordingly, given the fact that much of the husband's fortune was inherited, the real issue in the case was what capital sum would satisfy the wife's needs, particularised as a good house in Chelsea, the costs of acquiring it and kitting it out, and a Duxbury fund. The first FDR hearing took place on 15 January 2001 and achieved a short-term agreement to provide the wife with substantial maintenance pending suit as well as the substantial rent of her temporary home. However it was considered premature to attempt to compromise the longer-term and the FDR was adjourned to 3 August 2001 and certified fit for vacation business. An order was made for the filing of full affidavits setting out the respective cases on all issues relevant to the exercise of the judicial discretion, but subsequently the husband's solicitor sensibly proposed that affidavits should be deferred until after the adjourned FDR to ensure that contentious allegations should not prejudice the prospects of a negotiated settlement. Since the trial had been fixed for November there would be ample opportunity to file such evidence should the adjourned FDR fail.

    5. The FDR was fixed before Bennett J. In preparation for the hearing the husband's solicitors filed all the documents that they considered relevant, comprising two lever arch files. In addition to the essential information as to family finances they included the husband's affidavits as to the wife's conduct and character sworn in the injunction applications and expert reports, from agents as to the valuation of the wife's housing needs and from forensic accountants as to the reasonable level of her future expenditure. Gauging the weight of those files without any detailed inspection I would hazard that it must have taken Bennett J at least half a day to prepare for the adjourned FDR hearing for which the full day had been set aside. In further preparation the judge had the advantage of written submissions and appendices, extending to 20 pages, prepared by Miss Baron QC for the wife. Mr Singleton QC, leading Mr Marks, filed their skeleton argument with appendices extending to some 14 pages.

    6. It is necessary to record the events of 3 August 2001 in some detail. The judge sat at 10.30am to hear Miss Baron enlarge upon her written skeleton. Her oral submissions account for the first 48 pages of the transcript. Mr Singleton responded over the course of the following 31 pages of the transcript. Miss Baron's reply covered three pages. Throughout those 84 pages of transcript the main issues debated were:

    i) Whether the wife's needs should all be met by a conventional unrestricted payment or whether a substantial portion of her needs should be met by a life interest in a trust fund.

    ii) The reasonable cost of buying and kitting out the wife's future home.

    iii) What budget would the wife reasonably require to meet the costs of an appropriate standard of living in a new home. Although the husband had a substantial earned income from his employment as well as a substantial unearned income he emphasised that his practice had always been to live modestly and to devote a substantial proportion of his annual income to increase his capital worth.

    7. At the conclusion of counsels' oral submissions Bennett J said that he would retire briefly to consider the broad indication he would give as to outcome should the case go for contested hearing in November. He returned after approximately twenty minutes to give that indication in a reasoned statement extending over five pages of the transcript. First he said that the husband's life interest in the settlement would be regarded as his capital resource, giving him for the purposes of the litigation a fortune of approximately £13M. Next he held that it would be reasonable to allow the wife £1.875M for her house purchase. Apart from shaving her claim for kitting out the house he accepted her other immediate needs, namely costs of purchasing the home and the cost of a new car. However the judge was robust in criticising the suggestion that the wife would require to spend £110,000 per annum. Although he dismissed the suggestion that she had a notional earning capacity he put her annual budget, excluding periodical payments for the children, at £65,000 per annum. On what was for the husband the key question, namely whether her provision should be outright or partly in trust, the judge indicated that it was not a case for such restriction having regard to the fact that the children were already very well provided for and that the wife should not be restricted in the control of her own home. The overall cost to the husband of a clean break on these promises would be £3.6M.

    8. After short exchanges with counsel the judge adjourned, it then being 1.05pm, to enable the parties to negotiate.

    9. We are able to establish what then occurred both from Miss Baron's recollection and from an attendance note subsequently prepared by the husband's solicitor Miss La Follette of Charles Russell. It seems that after approximately an hour of discussion with his team the husband instructed Mr Singleton to offer to bring the wife's assets up to £3.4M, about £200,000 less than the judge's indication. Before receiving any response the husband instructed Mr Singleton to advance an alternative proposal of £3.7M, £1M of which would be in trust. Miss Baron's counter proposal was £3.5M outright, giving credit only for the value of the wife's portfolio, approximately £270,000 and all derived from the husband.

    10. The solicitor's attendance note shows that the husband then agonised and each member of the legal team offered advice. It is clear that Mr Singleton eventually advised the husband to break off negotiation and to reflect, on the basis that the wife's counter-offer would not go away overnight. However the husband grasped the nettle and instructed Mr Singleton to accept Miss Baron's counter-proposal.

    11. The judge was summoned and the court resumed at 3.40pm. Miss Baron said:

    "I have to tell your lordship that we have come to terms. The terms are that my client will receive a clean, clear package, which is £3.5M, and it will be monies that are paid to her and there will be no trust. She will receive as well her costs paid in full in an agreed sum of £149,396."

    12. There followed the explanation that the precise sum to be paid by the husband in order to bring the wife's assets to £3.5M net depended upon ascertaining the value of the portfolio as at that day together with the amount to be allowed for CGT. In conclusion Miss Baron said that she would draw up an order and agree it with Mr Singleton. The judge then turned to Mr Singleton who effectively offered brief assent without correction. The day's proceedings concluded with this exchange:

    "Mr Singleton: Unless there is anything I can add?

    Mr Justice Bennett: I am very happy to record it.

    Miss Baron: My Lord, we are very grateful for the time and trouble.

    Mr Justice Bennett: Congratulations to you all.

    Miss Baron: Thank you very much indeed my lord. Is your Lordship available in the next week for the order to be approved?

    Mr Justice Bennett: Yes, certainly.

    Miss Baron: Thank you very much.

    Mr Justice Bennett: Not at all."

    13. By that time it was approximately 4.00pm on a Friday in vacation. It is hardly surprising that detailed drafting, or indeed any written reduction of the relatively simple terms explained to the judge, was not attempted.

    14. In the event, because Mr Singleton had interrupted his holiday to be available for the hearing, Mr Marks produced the first draft of the order which he dated 3 August and apparently transmitted to Miss Baron on 5th. Miss Baron proposed some comparatively minor amendments, which were sent to Miss La Follette by the wife's solicitors on 10 August. Miss La Follette replied on the same day enclosing her client's cheque for the first tranche of £230,000 due on 17 August. However she required the cheque to be held to her client's order. She also said, perhaps ominously, 'I shall take my client's instructions but as you know, he is in the south of France and difficult to contact'. I say ominously only because the technical expression of what had been agreed was a task for counsel to which the husband could seemingly make scant contribution.

    15. Breakdown came in a letter of 16 August from Miss La Follette. The principal paragraph reads as follows:

    "My client has given a great deal of thought in the past ten days to the outcome of the negotiations which took place at the FDR on 3 August 2001. With the benefit of further consideration, my client does not believe that he can implement an agreement reached, he believes, under duress. But more importantly, my client does not think that the judge was sufficiently aware of the circumstances of this case. The comments he made were without benefit of significant evidence such as (to give only one example) the way in which the wealth was built up over many generations and not simply as the result of one man's efforts in relation to Glaxo. The FDR is only a brief snap shot of any case and in coming to such superficial conclusions, there is a great deal of room for error."

    16. This development obviously caused the wife's advisers great anxiety. On Miss Baron's advice an order was obtained without notice on 22 August from Mr Justice Kirkwood freezing £3.7M of the husband's assets. I infer that Miss Baron was not thereafter available since on 24 August the wife's solicitors issued an application for the husband to show cause why an agreement reached at the FDR should not be made an order of the court. This application was settled by a junior member of her chambers who did not seek to assert at anytime that an order had already been made by the court on 3 August.

    17. The application came for hearing before Coleridge J on 3 September. Also before him was the return of the application which had resulted in the order made by Kirkwood J. It seems that no one appearing before Coleridge J on 3 September had appeared before Bennett J on 3 August. Counsel, solicitors and their assistants had all departed for holidays. The freezing order was sensibly resolved by an undertaking from the husband not to sell or charge the final matrimonial home. The principal issue for determination was the wife's summons of 24 August. The judge refused to convert the agreement into an order of the court. The only basis upon which he was invited to do so was that the agreement was so clear that its translation into an order was inevitable. Despite the fact that the husband's counsel in his skeleton argument agreed that not only was an agreement reached but also that the judge had approved the terms, counsel for the wife sought to rely on nothing but the contractual agreement. On that basis Coleridge J, quite rightly in my view, refused to perfect an order in the terms of counsel's draft. Instead he gave directions for an affidavit by the husband in response to that which had been filed by the wife to support her application, fixed a further FDR hearing and beyond it a five-day trial. On her return Miss Baron perceived that her case had gone off the rails in her absence. Accordingly on 12 October a further application was issued by the wife seeking an order that:

    "The terms of the order made by Mr Justice Bennett on 3 August 2001 be finalised by the court."

    18. The application was listed very promptly before Coleridge J on 19 October. On this occasion Miss Baron was opposed by Mr Mostyn QC who had replaced Mr Singleton. Miss Baron's simple submission was that on 3 August Bennet J had made an order in the terms agreed. The judicial duty to exercise a discretion to order what in all the circumstances was fair had been performed. Accordingly the husband was simply not entitled to resile from the contract and go for trial. Mr Mostyn's rival submission was that all that 3 August had produced was an agreement approved by the judge. The enforcement of that agreement depended upon the application of the principles in Edgar v Edgar [1980] 1 WLR 1410. Accordingly, however slender might be the husband's prospects of obtaining a court order more favourable than the terms agreed, he had the right to attempt it.

    19. The judge accepted Mr Mostyn's submission. Perhaps that is not surprising since Miss Baron was inviting him to reverse the conclusion which he had reached on 3 September. His essential reasoning is to be found in two paragraphs of the judgment which I set out in full:

    "The position, as I see the law, is set out in my remarks made on that day. It is, I believe, quite clear. What took place partly in front of the learned judge at the FDR was a familiar type of conventional negotiation which led to there being broad terms agreed between the parties. But no more than that. In my judgment, it is quite wrong to suggest that the oral announcement of terms to the judge at the conclusion of this hybrid-type of hearing (about which I shall say a little more in a moment) amounted to other than what it was, namely a broad agreement on the terms at which the parties would settle. To say that the judge gave his 'approval' to those terms, whatever that means and whatever may or may not appear in junior counsel's skeleton, I think is investing the exercise that Bennett J undertook on this particular occasion with a great deal more status than it deserves. The judge had read the papers and had expressed a view. He was told what the terms were and he, as it were, gave his blessing. No doubt, if he had thought the terms were wholly inappropriate, he would have also said so. It was obvious that he would, broadly speaking, bless the terms because they were very close to the terms which he suggested himself. Therefore, it would have been an extraordinary state of affairs if he had then not done other than congratulate the parties for having come to within less than a percentage point or two of what he had himself suggested. But he was certainly not approving the order in the technical sense because there was no order for him to approve.

    That is all that was achieved between the parties on this particular date. Thereafter the matter had to be reduced to an order. The order then had to be lodged, and the court, at that stage, whether it was then in front of Bennett J, or in front of another judge, I know not, would probably have made the order if he then approved it. But it is, in my judgment, a long step between what was achieved on 3 August and a final order. Therefore, any reference to decided cases where final orders have been made and later changed seems to me to be not in point so far as this application is concerned."

    20. Coleridge J then gave varied directions to reflect first the fact that the husband had on 2 October undergone major heart surgery that required complete rest and second the husband's concession that he was content to provide the wife with the agreed sum of £3.5M provided that a substantial sum was on trust. He extended the husband's time for filing his affidavit and abbreviated and accelerated the trial should a further FDR fail.

    21. Miss Baron sought permission to appeal which was granted on 30 November 2001.

    22. We have had the advantage of submissions from Miss Baron and Mr Mostyn which essentially replicate the submissions made in the court below. A number of peripheral issues have been raised, all of which have fallen away during the course of the hearing. The crucial but essentially short point that remains for determination was whether or not an order was made on 3 August disposing of the wife's application, subject only to perfection by entry in the court record either of a draft agreed by counsel or an offer settled by the judge in default of agreement.

    23. Before deciding that question it is necessary to establish the purpose of the FDR hearing within the context of the new procedures introduced in selected courts on trial on 25 July 1996 and extended throughout the jurisdiction on 5 July 2000. Mr Mostyn has reminded us of the history commencing with the President's Direction of 25 July 1996, subsequently varied by his Practice Direction of 16 June 1997 and now stated in the Practice Direction of 25 May 2000. He also reminds us of the Practitioners Guide dated August 1996 issued by the Lord Chancellor's Advisory Group on Ancillary Relief with a commentary written by four experts, two of whom were Paul Coleridge QC and Nicholas Mostyn. Perhaps of greater bearing is Rule 2.61E of the Family Proceedings Rules 1991 as amended. That rule states:

    "(1) The FDR appointment must be treated as a meeting held for the purpose of discussion and negotiation and paragraphs (2) to (9) apply.

    (2) The district judge or judge hearing the FDR appointment must have no further involvement with the application, other than to conduct any further FDR appointment or to make a consent order or a further directions order.

    (3) Not later than 7 days before the FDR appointment, the applicant must file with the court details of all offers and proposals, and responses to them.

    (4) Paragraph (3) includes any offers, proposals or responses made wholly or partly without prejudice, but paragraph (3) does not make any material admissible as evidence, if, but for that paragraph, it would not be admissible.

    (5) At the conclusion of the FDR appointment, any documents filed under paragraph (3), and any filed documents referring to them, must, at the request of the party who filed them, be returned to him and not retained on the court file.

    (6) Parties attending the FDR appointment must use their best endeavours to reach agreement on the matters in issue between them.

    (7) The FDR appointment may be adjourned from time to time.

    (8) At the conclusion of the FDR appointment, the court may make an appropriate consent order, but otherwise must give directions for the future course of the proceedings, including, where appropriate, the filing of evidence and fixing a final hearing date.

    (9) Both parties must personally attend the FDR appointment unless the court orders otherwise."

    24. Mr Mostyn relies upon the words of the opening paragraph of the rule: 'the FDR appointment must be treated as a meeting held for the purposes of discussion and negotiation'. He places similar reliance upon the like language contained in paragraph 3.1 of the latest Practice Direction which, after reference to Rule 2.61E continues:

    "Such meetings which were previously described as meetings held for the purposes of conciliation have been developed as a means of reducing the tension which inevitably arises in matrimonial and family disputes and facilitating settlement of those disputes."

    25. He further relies upon the words of Coleridge J at page 14 of the judgment when he said of the FDR:

    "It is called a hearing. That is a complete misnomer. It is not really a hearing at all. The reality is that it is merely a meeting of the parties on a totally without prejudice basis at which the judge, using his experience and no doubt his authority, facilitates the negotiation and expresses, more often than not, a preliminary but inevitably superficial view about the possible outcome to the case."

    26. On that foundation Mr Mostyn criticises the manner in which Bennett J conducted the FDR hearing on 3 August. He says that the judge, instead of acting as a mediator, embarked on a formal process of preliminary trial, reaching clearly stated conclusions on the basis of documents and the written and oral submissions of counsel. That process, far from facilitating compromise, risks to overbear the parties and to pressurise them into a result that might be very different from the result produced by the full process of trial over the course of the five days allowed.

    27. He found some support for these submissions in the judgment below where Coleridge J said:

    "It is totally understandable that litigants should feel under enormous pressure at these FDRs, first, to settle, and, secondly, to take very great note of what the judge says. To some extent that is the purpose. I have no doubt at all that this was such a case. I have read the transcript. Bennett J, doing the best he could, expressed himself on the various contentious issues in clear terms and, no doubt, the husband felt that he had little option but to take a great deal of notice of what the judge said on that occasion.

    But occasionally and inevitably there will be times when, I believe, parties will say that they have been unfairly overborne by a combination of the occasion, the judicial indication and the heavy legal advice. That is not, in any sense, a criticism of this very useful system and certainly not a criticism of this experienced judge. But I think a little care does need to be taken that parties, when they reach agreements at these FDRs, are doing so on a totally voluntary basis. A breathing space or a period to reflect might sometimes be a wise precaution before final conclusions."

    28. Now in my opinion whether the FDR appointment is designated a hearing or a meeting is of purely semantic significance. Certainly it is a hearing in the sense that the attendance of the parties is obligatory (Rule 2.61E(9)) and they are obliged in attending to use their best endeavours to reach agreement on the matters in issue between them (Rule 2.61E(6)). The appointment is presided over and controlled by the judge. At its conclusion an order results. Only three categories of order are possible:

    i) an order adjourning the appointment;

    ii) a consent order disposing of the case; or,

    iii) directions to progress the case to its final hearing.

    29. I am in entire agreement with Coleridge J that the FDR hearing may take many forms dependent on the style and practice of the individual judge. The vast majority of FDR appointments will be conducted by district judges sitting in the PRFD or at any one of the many courts throughout the jurisdiction where contested ancillary relief cases are listed. The duration of the FDR will depend to a large measure upon the scale of the case and the complexity of the issues. Generally a comparatively brief time estimate will be adopted and a centre such as the PRFD will dispose of many FDR hearings in an average working day. Only a tiny proportion of ancillary relief applications will be listed before a judge of the Division at the FDR stage. Of the seventeen judges of the Division some will undertake a disproportionate share. Accordingly anecdotal evidence of variations of style noted by Coleridge J is inevitable. But in my opinion it would be unhelpful to impose any restrictions on the exercise of the judicial discretion in this innovative and elastic field. However I would strenuously reject any criticism of the manner in which Bennett J conducted this FDR on 3 August. Indeed I would say that his conduct of the hearing might stand as illustrative of one classic method. The art of mediation depends upon qualification and training. Years of experience in a specialist litigation field are no substitute for that training and qualification. Very few of the judges whose duty it is to conduct FDR hearings will have had any training and qualification as mediators. However those who have long experience in a specialist field of litigation are supremely well qualified to offer what is widely known as early neutral evaluation. That is precisely what Bennett J offered, having prepared himself by extensive pre-reading and by drawing on the expert submissions of leading counsel both written and oral. In many cases the neutral evaluation will be supplemented by an objective risk analysis of the costs incurred, and the costs to be incurred by proceeding to full trial, against the value of what is truly in issue, drawn from a comparison of the applicant's lowest target and the respondent's highest offer. Beyond those methods there may be dangers in judges over-estimating their ability to bring about a compromise by the use of other forms of mediation for which they have received no training.

    30. Equally early neutral evaluation at the FDR hearing remains a tool to be used with due circumspection. Successful use depends both upon thorough preparation and also upon the nature of the case. The present appeal well illustrates the need for, and the virtues of thorough preparation. As Miss Baron put it this was a Rolls Royce FDR hearing. The scale of the average case does not begin to justify such treatment. A district judge in a busy hearing centre may have several FDRs in his list each with a one-hour time estimate. The papers submitted in advance may be inadequate or incomplete. The court may not have had adequate time to pre-read. Furthermore it is not easy to retain a clear separation of the relevant facts of the several cases so listed.

    31. As to the nature of the case, issues in the present appeal were very well suited to early neutral evaluation. A basic question as to the fair price for a clean break was only embroidered by the husband's contention for a trust fund and very conventional bickering over the extent of the wife's income needs. But in many cases the issue will be by no means so clear cut. To take a typical example often the target of the applicant wife and mother to retain the final matrimonial home is too finely balanced to allow any clear forecast of outcome at a FDR hearing.

    32. It is also important that judges should recognise the extent to which the parties will have invested in the FDR hearing. In many cases they will regard the words of the judge as a decisive statement of outcome. It is thus important that the judicial evaluation at the FDR should never be superficial or ill considered. In view of the impact of the opinion and its capacity to collapse a reasonably held target, careful preparation and proper reflection are necessary safeguards to any forecast. Furthermore in the typical case that I have instanced the impact of the oral evidence at a trial can be decisive. The FDR is an invaluable tool for dispelling unreal expectations but in the finely balanced case it is no substitute for trial and thus should not be used as a discouragement to either an applicant or a respondent to go to trial in a case that can only be properly resolved by full and fair trial.

    33. Against that background I approach the crucial question: what was the product of the hearing before Bennett J? Was it merely a concluded contractual agreement between the parties or was it an unperfected order of the court? In my opinion the product was clearly an unperfected order of the court. I cannot agree with the reasoning of Coleridge J in the passage that I have already cited. In particular within that passage I conclude that the judge was wrong to say:

    "What took place partly in front of the learned judge at the FDR was a familiar type of conventional negotiation which led to there being broad terms agreed between the parties. But no more than that."

    34. Equally I reject the sentence:

    "To say that the judge gave his 'approval' to those terms, whatever that means and whatever may or may not appear in junior counsel's skeleton, I think is investing the exercise that Bennett J undertook on this particular occasion with a great deal more status than it deserves."

    35. I reject two sentences to like effect on the following page:

    "But he was certainly not approving the order in the technical sense because there was no order for him to approve."

    And:

    "But it is, in my judgment, a long step between what was achieved on 3 August and a final order."

    36. It would be hard to conceive of a more elaborate or more profound exercise than that which the parties prepared and which Bennett J then conducted. I am not sure if that point of fact was sufficiently appreciated by Coleridge J for early in his judgment he said:

    "The FDR took a very conventional route; that is to say, the matter having been explained to the learned judge, he took the opportunity to rise and read, I would say, probably skim read the papers, and he then came back to court and expressed a view about the sort of level at which this case might compromise."

    37. At the end of a full day the advocates and the judge approached the point at which the hearing was to conclude in its appropriate order. Plainly there was no need to adjourn the FDR. Plainly there was no need to give directions as to the November fixture (indeed early in the following week the parties vacated the fixture). Surely the only order to be made was an order in the terms agreed, provided that the judge in the exercise of his statutory duty and on the application of the statutory criteria in section 25(1) and (2) concluded that they were fair. Manifestly in this case that conclusion was a formality since the figure agreed was so close to the figure that the judge had commended. When Bennett J said on the concluding page of the transcript 'I am very happy to record it', he was in effect saying: 'I make an order in the agreed terms'.

    38. It is commonplace in this and in many other fields of litigation for the judge simply to make such a pronouncement and delegate to counsel the task of writing the script, dotting the legal i's and crossing the legal t's. If counsel agree the exercise an order is generally drawn by the associate without further reference to the judge. Miss Baron's subsequent enquiry as to whether the judge would be available in the following week for the order to be approved was a courteous but perhaps over-cautious enquiry. For the judge would only be needed in the relatively unlikely event of disagreement between herself and Mr Marks.

    39. What then is the legal consequence of this conclusion? On the one flank is the complete contractual agreement which has not been elevated into an order of the court. The legal effect is clearly established by the decision in De Lasala v De Lasala [1980] AC 546 and the extent to which the contractual agreement is to be reflected in the subsequent exercise of judicial discretion is established by the decision of this court in Edgar v Edgar. On the other flank are consent orders validly made by the court. From such an order a party may not resile and he may only seek release by action or application that asserts a vitiating element such as misrepresentation, mistake, material non-disclosure or a subsequent fundamental and unforeseen change of circumstances. Illustrations of outcome in such cases is provided by Barder v Caluori [1988] AC 20, Livesey v Jenkins [1985] AC 424 and Robinson v Robinson [1983] 4 FLR 102.

    40. However no authority has been cited in this field where a party seeks release between the making of the order in court and its subsequent perfection. In this area Mr Mostyn relies upon the recent decision of this court in Stewart v Engel [2000] 3 All ER 518. There, in the context of civil proceedings, this court held that the judge retained the power to reconsider his conclusion prior to perfection in certain circumstances such as plain mistake on the part of the court; where the parties had failed to draw the court's attention to a fact or point of law that was plainly relevant; where new facts were discovered after judgment; or where a party had not been given fair opportunity to consider an application which had taken him by surprise. On that foundation Mr Mostyn submits that his client has only to establish exceptional circumstances or strong reasons to prevent subsequent perfection. In effect he submits that his client's application for release should be decided on Edgar principles. In response Miss Baron suggests that an application to resile between the making and the perfection of the order should be dealt with on much the same basis as an application to set aside a perfected consent order. In my opinion it is perhaps wiser to avoid attempting to state a general principle. Manifestly the considerations identified by this court in Stewart v Engel are likely to have equal application in this specialist field. But even if a test of exceptional circumstances, or alternatively strong reasons, were to be applied, in my opinion, the husband on the facts of this case gets nowhere near satisfying the test.

    41. He has sought to explain and justify his retreat on three separate occasions. First there is the letter of 16 August which I have already cited. There he relies upon duress and the judge's failure to understand the precise genesis of his fortune. The first point, on the authorities, takes him nowhere. The second point seems to me to have little or no relevance to the exercise of the judicial discretion.

    42. Before Coleridge J on 3 September junior counsel for the husband stated that Miss Baron had made misleading representations in relation to the party cited. The statement is plainly erroneous; it no doubt results from the fact that on that day no one present had participated in the FDR hearing. The only representations made by Miss Baron were in her written skeleton and they had not been controverted by Mr Singleton either in his skeleton argument or in his oral submissions.

    43. Finally Mr Mostyn in his submissions to Coleridge J on 19 October advanced the following justifications:

    i) the court did not have the full picture;

    ii) the party cited had an unsavoury record and the wife had committed adultery with him in the matrimonial home;

    iii) details of the generation of the family's fortune had not been given to the judge;

    iv) the judge had acted on partial information; and,

    v) Mr Singleton had formed the view that his client was not in a fit state to compromise.

    44. Insofar as Mr Mostyn's catalogue raises fresh material it is not in my opinion material that would begin to justify a departure from the court's order. No doubt in this case, as in many, the parties feel the tension of the negotiation and the agony of deciding whether to exit from an extremely disturbing and stressful situation by compromise or to soldier on down an increasingly stressful road to a contested trial. It is inevitable that the FDR hearing will intensify the tension and stress which is persistent until the parties have freed themselves financially and emotionally from their previous relationship. The whole purpose and effect of the FDR would be lost or compromised were parties free to analyse and re-evaluate a crucial decision of the previous day or the previous week and to decide on further reflection that they made the wrong choice. I have no doubt that this case has been particularly stressful for the parties since 3 August. It is clear that despite engaging the best possible professional expertise they have had an unfortunate outcome. Had the FDR hearing not concluded when it did there would have been a much-reduced interval between the making and perfection of the order. The holiday season resulted in the wrong application being advanced to a judge other than Bennett J. Once Coleridge J had reached the right conclusion on the misconceived application his subsequent response to the correct application was to some extent prejudiced.

    45. In conclusion I would allow this appeal and confirm the order as made by Bennett J in the terms subsequently drafted by counsel. The fixtures in the Family Division in March and May will be vacated.

    BUXTON LJ:

    46. I agree.

    MR:

    47. I also agree.

    Order: Appeal dismissed with costs on standard basis.

    (Order not part of approved judgment)

Judgment, published: 20/02/2002

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Published: 20/02/2002

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