We have had a judgment further clarifying the interplay of arbitration awards and court orders. HHJ Booth sitting as a High Court Judge in Blackburn gives the judgment in ON v ON [2024] EWFC 379.
Firstly, a big thank you to the judge for a clearly written judgment with headings pointing the reader to the topic to be tackled. I’ve always like the judgments of Mr Justice Mostyn for that type of lay out and thread of thought. I am enjoying this judgment for the same reasons. Clarity through format is a beautiful thing, in my view. Thank you, HHJ Booth.
So, what is the case about? In a nutshell, a husband and wife agreed to arbitrate, got the award, took ages to get it into a court order and during that time, it became apparent that the husband was not as open with his disclosure as he ought to have been. The wife complained about fancy footwork on the financial disclosure; the husband said it was all over and done with by the time of the arbitral award and that was that. Both had run up impressive, and by that I mean huge, legal costs with the wife’s being far in excess of the husband’s.
What are the key take aways from this? Again, congratulations to the format of the judgment because there is a nice paragraph entitled ‘Lessons to be learnt’ which says:
- The first lesson is that the duty of full and frank disclosure continues beyond an arbitral hearing, beyond an arbitral award/judgment and until the court has approved an order reflecting the arbitral award. Secondly, any application to set aside an arbitral award needs to be focussed, realistic and confined to those matters that make a material difference. Thirdly, the approach to costs in these circumstances is likely to mirror that of an appeal, where a party will only recover the costs in the appeal on issues they succeed in and are at risk of being ordered to pay costs in relation to issues where they lose.
- Finally, this case should be a salutary reminder of the need to negotiate and to settle on realistic terms in a timely fashion. Otherwise, the outcome, as here, can be ruinous.
I think there is also another point that is that an arbitral award is not the same as a court order and the court has the final say. That places family law arbitral awards in a very different world to civil arbitral awards and reminds us, again, that the family jurisdiction is a protective one, protecting the vulnerable who operate in a sea of emotion at times when they are really not equipped, emotionally, to navigate the choppy waters.
This decision is a good reminder on the obligation to give financial disclosure, both in court and arbitral proceedings, until the order is made.