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What is the price of 46 words? £37,000…
That was the combined cost of a discrete application in the case of BC v BC [2025] EWFC 236, where Peel J had to decide whether a husband's open offer improperly referred to what had happened at the private FDR.
FDRs (financial dispute resolution appointments), whether court-based or private, are held on a 'without prejudice' basis. That means parties can make offers and concessions at an FDR without fear that they will be referred to or used against them later at trial. It is a chance to test the water without sinking the ship.
The wife in this case took exception to 46 words in the husband's open offer sent immediately following the FDR, which read: 'Of course, today would have been the second day of the hearing were it not for your client's retrograde decision to leave the building yesterday, not thirty minutes after receiving [the evaluator's] written indication… [the husband] hopes very much that, despite [the wife's] impulsive decision to end the pFDR process so immediately yesterday, some sense will now prevail".
Peel J agreed with the wife. Whilst you are allowed to refer openly to the fact that an FDR has taken place (including where it happened, how long it lasted, and who attended it, including the identity of the evaluator), you cannot mention whether offers were made, what those offers were, whether the evaluator gave an indication or what it was, or how a party responded to it. That information is privileged. Divulging it risks undermining the FDR process and prejudicing the trial judge, and can lead to costly satellite litigation, as happened here.
The 46 words in the husband's open offer were not, as described by his solicitors, merely "logistical details". They implied that the wife had rejected the FDR indication, stormed out, and refused to negotiate further. They struck at the heart of the privilege that attaches to the FDR, which must be preserved if parties are to have the confidence and protection to safely test the water.
If one party is allowed to expose the other with a one-sided story, the other party will inevitably need to counter with theirs. Context and proportionality are essential.
And speaking of proportionality, Peel J wryly observed: 'even for people who have wealth, which is vast by most standards, [£37,000] is a startling sum to be spent over a total of 46 words'.
This got me thinking about how unpredictable family cases can be, and how easily legal costs can spiral, often well beyond what most would consider proportionate, and even for the wealthiest clients. Whether sorting out finances on a divorce or dealing with arrangements for children, it is normal for things to take longer and to cost more than might be expected at the start.
It is always better for cases to be resolved out of court and, thankfully, the vast majority are (especially with the welcome rise in non-court dispute resolution options). But some cases do need to be litigated. And it is not uncommon in litigation for timetables to slip, hearings to be adjourned, or for unforeseen issues or urgent applications to arise. Add the often-necessary fees of third-party experts (such as, in financial disputes, valuers, tax advisors, or pension actuaries or, in children proceedings, independent social workers or child psychiatrists) and costs can rise even more. So what might start as a relatively straightforward case can quickly become complex, lengthy, emotionally draining, and expensive.
Unfortunately, sometimes it can be the fight itself that drives the cost. Handling what may be one of the most difficult times in life, people can become so entrenched in conflict that their focus shifts from finding a resolution to simply 'winning the fight'. If that happens, costs can skyrocket, and the emotional toll can be just as heavy. At that point, no one really wins.
There is no easy solution, but proportionality matters. Good legal advice includes helping clients pick their battles. Just because an issue can be litigated does not mean it should be. It is always important to take a step back and ask: 'is this point really worth the cost of arguing it?'
Sometimes, the answer will genuinely be yes. But the key is to ask the question in the first place.
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