How true is the notion that “what happens at FDR stays at FDR”? Does this principle apply differently to private FDRs as opposed to court-based FDRs, and what does “without prejudice” actually mean in this context?
With the growing popularity of non-court dispute resolution (NCDR), these questions have become increasingly relevant for practitioners and parties alike.
In this article published in the LexisNexis Family Law Journal (November 2025), Adrian Barnett-Thoung-Holland and Cason Yong examine recent authorities, such as DF v YB [2025] EWFC 76 (B) and BC v BC [2025] EWFC 236, to assess the extent to which the “without prejudice” rule applies in both court-based and private FDRs, and considers whether the current law provides sufficient clarity and consistency in defining its scope.
They conclude that, for the most part, what happens at FDR does indeed stay at FDR, whether court-based or private. However, several loose ends remain for the court’s consideration, particularly in relation to costs consequences. Therefore, they argue that greater guidance is needed from the judiciary to avoid creating a de facto two-tier family justice system.
If you have a subscription, you can read the full article and explore this important issue further, please access the article here or visit Family Law Journal online.
