Article by Orla O'Hagan, originally published by Solicitors Journal in its May 2021 edition
As we emerge from covid-19 and,
hopefully, our final lockdown, we will
look back on a turbulent year, learn
from the experience forced upon us and from
the workplace adjustments we had to make. The court service has struggled, just
like other organisations; particularly so
when it was already under immense strain.
Here, I focus on the impact upon the
financial remedy court (FRC) and financial
dispute resolution hearings (FDRs). Recently, I decided to leave judicial office
after 10 years, which had followed private
practice as a family solicitor and family
mediator. Thus, I have experience as a
practitioner and a court user, then latterly as a
decision-maker within the judiciary itself. This
includes during and post-covid-19 with all the
problems that created. With a new private FDR
business, I now have a different perspective. So, what happened to the FRC after covid?
The usual sequence in financial
remedy proceedings is the first directions
appointment (FDA), FDR and then the final
hearing. By the FDR stage, there should be
sufficient information available to focus on
settlement with the court’s assistance and
which, if successful, ends the litigation.
From 20 March last year, these cases
were either cancelled or listed remotely and subject to a new triage system where
judges first considered whether they were
suitable for remote hearing and whether
they could be heard as scheduled. Telephone and video hearings take
longer mainly due to setup arrangements.Sequential and not bloc listing is required;
gaps between hearings and IT issues are
inevitable with remote litigation, so they
do need additional time. Many hearings,
including FDRs, had to be adjourned – often
at short notice. That meant a long time
before relisting, so this meant even longer
again until trial (if one was required). Parties were encouraged to use the fasttrack system for FDAs and to agree Directions
in correspondence. At the other end of the
process, final hearings were initially vacated
and pre-trial reviews (PTRs) or ‘ways and
means’ hearings were introduced to address
how the final hearing would now proceed. As covid-19 progressed and we all
adapted, it became increasingly clear
that in person final hearings could be
more than a year away and that remote
final hearings must be considered. It is
now accepted that most financial remedy
trials can take place effectively by video
if they cannot be accommodated in court,
although not without their challenges.
Judges will obviously have to be satisfied
of a case’s suitability in each situation.
PRIVATE FDRS WELCOMED
What became clear is that long delays
remained likely for some time, even if in
person hearings are now returning. So, with
hearings adjourned (and possibly more than
once) there was added incentive to settle
and to explore alternative dispute resolution.
Litigants were reminded of private FDRs
as an option, some courts adding this as
information to post-covid orders. The
ongoing message from the judiciary is that
the use of private FDRs is welcomed. In principle, FDRs are important. I haven’t
heard of any practitioner who doesn’t
support them and their objective of finding
a solution to avoid trial, with the aid of an
indication from a specialised FRC judge as
to a reasonable and likely outcome should
the case not settle – and all in confidence, so
that participants are able to negotiate freely. At this point, evidence is not heard
and nor are the issues determined by the
court. Rather, the focus is on progress and
settlement. An independent view from a
judge at this stage, one who is experienced
in determining these cases, is invaluable to
the negotiation process. What’s not to like? At worst, there is an opportunity to test the
case and bargain; and maybe an unwelcome
view on your case from the judge and/or no
agreement being reached. But focus is then on
what has to be addressed and arrangements are made to progress to trial. At least closure
is in sight, while negotiations can continue. At best, a final agreement is reached,
trial is avoided and costs are saved.
As a former deputy district judge and
district judge on the FRC, I have conducted
FDRs over and over again and seen their value
in practice. But I’ve also seen the limitations
in court (as set out below) especially in the
last year. Private FDRs have become more
attractive because they avoid these problems. They will also take some pressure off the
court service the more widely they are used.
This can only help the system and those
cases remaining within the system. On
leaving judicial office, I was convinced
I could conduct FDRs more effectively on
a private basis, pandemic or no pandemic.
There has been much talk of crisis in the
court system long before the arrival of
covid-19, with lengthy delays and backlogs
being common features. It doesn’t take much
of a leap to imagine the impact of covid-19
on that service, on judges and on support staff. There have been court closures and
adjustments; social distancing measures
and occupancy limits; new protocols and
covid-19 orders; the conversion to remote
hearings overnight and the challenges
they present; cancellation of cases that
could no longer be heard as planned; cases
transferred to different courts for hearing
and files in regular transit; new IT systems
and hearing platforms; staff shortages;
court offices deluged with emails and
constantly moving goalposts as the pandemic
developed. No, not much of a leap at all –
and most litigation practitioners will have
experienced the knock-on effect themselves.
It has been particularly hard on family
litigation. This is because when families
were already suffering the breakdown of
their family unit – when the pandemic
may also have inflicted damage on those
families – they may well have also faced
delay or disruption to their case.
Financial remedy is only part of the
family justice system and importantly,
child cases or cases where there is risk
of harm are prioritised and heard as soon
as possible. However, limitations still
existed. This is, of course, in addition to
the civil and criminal law systems which
have also been injured by covid-19. I have only admiration and respect for
judicial colleagues who continue to give
their loyal service, working under this
increased pressure, with the return to
normality (in itself arduous) still uncertain.
Time is a luxury the court simply does not
have enough of. FDRs are usually bloclisted with several other cases, typically
allocated only an hour – and cases tend
to run over. There is a lot of waiting
and less judicial hearing time, even less
again for judges to read the papers.
And that is assuming they receive
them all before the hearing – a particular
difficulty during covid-19. The parties
and their legal representatives use the
opportunity while in court to negotiate
and can come back before the judge, but
judicial availability is still limited.
Time will also have to be spent
on Directions because if there is no
settlement, preparations have to be made
for trial; and there is usually insufficient
time for the court to hear lengthy
submissions over disputed Directions.
It can be surprising how much time these
take if they are not agreed. Judges are acutely
conscious of timescale as other cases will be
waiting. They will urge the parties to agree
Directions and, of course, focus all minds on
reaching a final settlement. They will also
want to have as much information as possible to give a reliable view at FDR, so they will
be hampered if information or documents are
absent, not ready, filed late or – frustratingly
for all – filed but not yet with the judge.
Without the necessary documentation,
the FDR may be aborted. This screams
waste, cost and delay.
Completing this process remotely adds
further hurdles, including a time element to
be factored in as everything takes longer.
Rushing an FDR feels uncomfortable,
especially considering the effect on the parties.
It is, after all, their case, their financial
arrangements at stake and all at their cost.
Naturally, only their own case matters to
them. They expect to be given the time they
think their case needs and will probably be
naive to the reality and the understandable
limitations of the court system.
My experience is that judges and court staff
work incredibly hard in the administration of
justice, but because the court service operates
under such huge demand, parties do not always
receive the experience and time they hope for.
PRIVATE FDR's COMPARED
A private FDR offers ample time. It is usually
scheduled for a whole day with the judge
which is used exclusively for that one case.
There are no adjournments or delays, no other
distractions and all the information is received
by the private FDR judge well in advance.
This means nothing is left to chance or
until the last minute, save for the inevitable
late developments in the case. Instructing
solicitors will ensure this is so – their clients
pay for the service which they have both
chosen; all those involved have the day
reserved for the private FDR; and they want
to ensure it is as effective as possible.
Yes, there is a charge but it is cost
effective. Attendees can be reassured that
the private FDR judge will have had time
to read all the papers and their case will
have the judge’s undivided attention for the
day – not for merely an hour, not in between
other cases and not with ‘a million and one’
other things to juggle during that time.
Private FDRs take place in the same
way as in court: by telephone, video or
in person. But the FDR judge, the time,
place and hearing platform are decided by
the parties themselves, not the court.
Private FDRs carry the same weight
and value as court-based FDRs. The
private FDR judge may be a part time
or former judge (though they don’t have
to be) who has conducted such cases
themselves, so the parties benefit from a
judicial, or at least an experienced view
as to a reasonable and likely outcome of
the case, to assist their negotiations.
They may not agree with that view. They are
neither bound by it nor obliged to settle, just
as with a court-based FDR. And as with any
financial remedy case, there is no guarantee
of settlement at the FDR or of the outcome
at trial. It is an expensive risk proceeding to
trial, hence the focus is on settlement now.
But the parties attend a private FDR
because they want to, which tends to mean
achieving a settlement is forefront in both
their minds. If terms are agreed, they will file
a consent order with the court for approval
as only the court can make an order.
But if terms are not agreed, it won’t be for
want of trying; and the parties will continue
to negotiate just as they would after a court
FDR. They will file agreed Directions with
the court to prepare for trial and if those
are in issue, the court will decide them. In effect, the court timetable resumes and
the case is listed for trial in the usual way. In
court, the without prejudice FDR paperwork
is removed from the file so the trial judge
(who cannot be the FDR judge) does not see
it. That is not a factor with private FDRs.
A GOOD JOB NOW
Life didn’t turn out as planned after my district
judge appointment, but then who among us
anticipated a pandemic and its impact? It
certainly ruined my judicial experience.
Like all judges I have met, I care about
every case I deal with. But what I have
learned most is how important it is for me
to do a good job and that I am not willing
to feel compromised in that objective.
Starting a private FDR business seemed
an obvious next step for me, using what I
know about financial remedy work, having
control over my time and being able to focus
exclusively on each case. It is my own very
small contribution to family justice today.