Is an FDR hearing truly sacrosanct? That’s the core question raised in BC v BC [2025] EWFC 236, a case that challenges the traditional shield of confidentiality that surrounds Financial Dispute Resolution (FDR) hearings.
Practitioners have long operated under the assumption that discussions at a private FDR are absolutely protected from later disclosure. But as BC v BC shows, even this “sacrosanct” zone may be pierced—when justice demands it.
The Background: A Dispute About Disclosure
Following a final hearing in financial remedy proceedings, one party in BC v BC sought to adduce material from the previous private FDR. This included:
- Details of what had been offered or said at the FDR,
- The tone and substance of the judge’s indications,
- Written materials submitted for the FDR.
The opposing party objected, invoking the well-known principle that FDR hearings are off-limits—expressly confidential and protected from use in later litigation.
But the applicant argued that material from the FDR was necessary to:
- Resolve questions about costs, and
- Respond to representations made post-hearing that, it was claimed, mischaracterised what occurred during the FDR process.
FDR Confidentiality: Where We Stand
Under FPR 9.17(2), discussions at an FDR are “without prejudice”—they cannot be referred to in later proceedings. This rule aims to:
- Encourage open, candid settlement talks,
- Shield parties from their own tactical concessions being used against them,
- Promote finality without fear.
The leading case of Clibbery v Allan [2002] EWCA Civ 45 and later authorities have affirmed that FDRs are quasi-privileged—not just confidential by practice but by rule.
So, how did the court square this with the request for disclosure?
What The Court Said in BC v BC
Mr Justice Mostyn reaffirmed the critical importance of FDR confidentiality, describing it as a "cornerstone" of the financial remedy system. However, he also acknowledged:
- The tension between confidentiality and a party’s right to respond to unfair or misleading claims made outside court.
- That once a party has referred to FDR discussions improperly, this may open the door to limited rebuttal disclosure.
This follows earlier dicta suggesting that confidentiality can be waived in narrow circumstances—particularly where it has already been breached by the other side.
The court struck a careful balance: most of the FDR material remained protected, but limited disclosure was allowed for the narrow purpose of correcting what had been said elsewhere.
Key Pointers for Practitioners
- FDRs remain highly protected, and parties should never assume they can refer to them freely.
- Courts may permit limited reference to FDR material—but only where necessary to correct misrepresentation or where one party has already breached confidentiality.
- Be extremely cautious in costs correspondence or post-hearing communications. If you hint at what occurred during the FDR, you may unintentionally waive privilege.
- Keep FDR notes and offers clearly marked as “without prejudice” and separate from open material.
- Remember that confidentiality is not absolute—it exists to serve justice, not to obstruct it.
Conclusion: Still Sacrosanct, But Not Untouchable
BC v BC is a rare but important case in the FDR landscape. It reminds us that while FDRs are shrouded in confidentiality, that shroud can be partially lifted when fairness demands it.
For family lawyers, the case serves as a reminder to:
- Take care in post-FDR communications,
- Avoid casual references to the content of those hearings,
- And prepare clients for the possibility that in exceptional cases, the court may permit limited disclosure.
The “sacrosanct” principle lives on—but not without boundaries.
