Financial Remedies and Covid-19 – the Brave New World of Remote Hearings

Harold Wilson supposedly said that a week is a long time in politics, well it seems an even longer time in Family Law lately. Traditional ways of conducting litigation that have been taken for granted for decades (if not centuries) are now as rare as the proverbial white leopard, while new-fangled ideas of remote working and alternative dispute resolution (ADR) that some of us have been pushing for years have become the default overnight. It seems every day brings another guidance document. The challenge for family lawyers is not whether to move with this trend but how, and how quickly we can do it.

The brave new world

The sea-change in our method of working is exemplified by the latest guidance from HHJ O’Dwyer for the Financial Remedies Court at the Central Family Court in London. This guidance includes provision that, at least for the period from 6 April to 1 May 2020 (and probably longer):

• Only the most urgent cases will be listed for an attended hearing.
• “Urgent” means applications for interim maintenance, legal services payment orders, freezing/set-aside orders under s. 37 Matrimonial Causes Act and enforcement orders.
• Even those types of cases will be triaged – they will require an explanation by email 7 days in advance or on the date of issue of why they are urgent before any attended hearing will take place, whether remote or otherwise.
• Wherever possible First Directions Appointments should be conducted by agreement, and in default of agreement as a paper hearing on written submissions.
• Pre-Trial Reviews and Final Hearings already listed are to be reduced to 1.5-hour directions hearings, to consider whether a contested hearing is necessary and if so the measures to be put in place to enable such a hearing to take place;
• All other hearings, including any contested hearings not considered sufficiently urgent will be adjourned and where appropriate referred to ADR.
• The parties are under a duty to consider ADR.
• The parties are also required to consider whether any dispute between them can be dealt with at a paper hearing on written submissions.
• Where a remote hearing is necessary the parties will have to show that they have taken all reasonable steps to pursue ADR and that a paper hearing is not appropriate. Such remote hearings will be by telephone unless the court directs otherwise.
• Electronic bundles are essential, and must be searchable, electronically paginated and compliant with PD 27A.

Under this guidance, at least in the short term, most matrimonial finance disputes will be forced to move from the court arena to a form of resolution – ADR – which is unfamiliar to many practitioners and clients in this field. Similar guidance is likely to follow in other courts. The cultural and practical obstacles may seem daunting, but the reality is that the groundwork has been there for a very long time.

ADR and remote working in family law

Judge O’Dwyer’s guidance references procedural rules that have been in place for many years. Rule 1.4 of the FPR 2010imposes a duty on the court to encourage the use of non-court dispute resolution. Rule 3.3(1) requires the court to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate. Where appropriate the court may direct that the proceedings be adjourned for such period as is considered appropriate to facilitate ADR. This has been in force in its current form since April 2014. It echoes similar provisions in the Civil Procedure Rules which have been in place for far longer. They provide for more than simply ticking the MIAM exemption box and moving on.

Rule 2.8 provides that the Court may deal with a case at any place that it considers appropriate. The overriding objective requires that cases are dealt with expeditiously and fairly and in proportion to the nature of the issues, with an eye to saving expense. Traveling many hours to a far-flung court to deal with a matter that could be dealt with by telephone would not seem to fit with this.

Best Practice Guidance on the conduct of FDRs issued as long ago as 2012 referred to private FDRs and there are reported cases where such private hearings have taken place going back at least as far as 2014. It should not be a new idea for most practitioners. The guidance was foreshadowed by Thorpe LJ’s reference to ‘private judging’ in Lykiardopulo v Lykiardopulo [2011] 1 FLR 1427.

In 2012 arbitration has been available for financial disputes on divorce and relationship breakdown, and since 2016 for private family law disputes.

In October 2014 in the case of JL v SL (No 1)(Appeal: Non-Matrimonial Property) [2015] 2 FLR 1193 Mostyn J urged parties who were arguing at great expense over the treatment of a relatively modest inheritance urged the parties to consider a private FDR or mediation rather than delay for a further final hearing. It is not recorded whether they took the Judge’s suggestion up, but the case was not resolved until at least two further hearings and a further 5 months had elapsed. The costs of such an exercise were likely very high.

In the same year Eleanor King J refused a wife’s application for a Legal Services Order on the basis of her attitude to ADR (see H v W (Cap on Wife’s Share of Bonus Payments) (No 2) [2015] 2 FLR 161).

In 2015 Cobb J in a speech to the Resolution DR conference asked whether “the time [has] come to amend the FPR to bring them in line with the CPR? Would you want judges to have the power (absent agreement) to stay a case to allow for settlement, or is agreement essential?”. The judge noted the element of coercion in bringing the parties together for an FDR as a mandatory attempt at settlement.

Rising to the challenge

In other jurisdictions (within and outside the UK) such ADR is commonplace. I can remember attending an arbitration in a wrongful death suit in California as long ago as 1997. If it was possible in the days before skype, zoom and Covid-19 to resolve such issues as compensation for the death of a loved-one out of court, then it is possible to resolve the division of matrimonial assets now with the benefit of such technology.

In civil proceedings there are costs implications for not undertaking ADR an Ungley Order is available, requiring the parties to consider ADR and for any dissenting party to file a statement setting out the reasons why it is not appropriate. In the First Tier Tribunals it has been common for years for the Child Maintenance Service to be represented by video-link, while many social security appeals are resolved by taking evidence by telephone.

As for remote working, I have been fortunate enough to spend half of my career practicing from London and half from the rather more pleasant surrounds of Devon. Nobody who has undertaken the slog to Mansfield or Lincoln County Court by public transport or been listed in Swindon at 10:00 and Gloucester at 14:00 for a largely uncontested directions hearing can have escaped the thought that there must be a better way. That is because there is.

I have represented clients based in the UAE, Peru, Australia and New Zealand and attended them by video conference or telephone. I have had evidence in court from parties abroad by video-link. Since moving to Devon, I have been able to undertake work for clients based in other parts of the country, again using technology to do so. As I write this my colleagues in chambers are attending disputed hearings with evidence via Microsoft Teams.

Once the natural fear of change is overcome it is not only possible, it is preferable to lengthy travel for relatively straightforward matters.

Many barristers’ chambers, including my own Magdalen Chambers in Exeter, have the facility for videoconferencing, arbitration and mediation, private FDRs and early neutral evaluation. We now have all our chambers meetings by videoconference and will be holding our first chambers online quiz night this week. My own experience of ADR and round table meetings is that, where the parties and practitioners engage in the process openly it is at least as likely to lead to a resolution as a formal FDR.

As family practitioners we will all be able to rise to this challenge if we embrace the technology and the new way of working. For some it will seem too daunting. No doubt the same was said by some when FDRs were introduced. I know many said the same when Direct Access was brought in. It is the new reality, however, and one which family lawyers are more than able to adapt to.