Final Hearings during Lock-down

When the current lock-down was announced many in the Albion Chambers Matrimonial Finance Team assumed that court hearings would be very difficult to conduct and that many of our cases would simply be adjourned until the crisis was over. After all, the family court has traditionally favoured in-person hearings, much more so than, say, the Crown Court or the Employment Tribunal, and attendance is mandated by the Family Procedure Rules.

In fact, things have not turned out like that and, although some hearings are being adjourned, many, including some lengthy final hearings, are going ahead.

This is a welcome development because it is a truism that divorce is a painful process, and it is no surprise that those locked in contested proceedings want that process to end. An adjournment means a continuation of the pain and is usually the last thing the parties want. Most would rather a bad outcome than no outcome at all.

It is therefore a relief that the powers that be, including the two lead judges for Financial Remedies, Mostyn J and HHJ Hess, have issued guidance to the effect that this work should continue. Just as importantly, our local judges, led by HHJ Wildblood QC, DJ Cope and DJ Watkins, are energetically encouraging us all to adopt a can-do approach in getting on with the work.

My own experience, and those of the team, is that some cases cannot proceed and have to be adjourned. That is usually due to the evidence having been thrown into disarray by the crisis, often because the expert is unable to complete their work now that the business or property they were valuing has been affected by the crisis.

Where these considerations do not apply, however, all parties should assume that the hearing will go ahead and the only issue is the practical arrangements needed to ensure that the hearing can be conducted remotely. I myself have just finished a three-day hearing before DJ Ireland sitting in Exeter. It was not a particularly complicated case, but neither was it entirely straightforward. The hearing was conducted using Skype for Business with the Judge in a courtroom on her own, the wife and her Counsel in a room at the court (for various reasons she was not able to be at home), and everyone else appearing from home. Both parties and their solicitors deserve great credit for doing everything they could to ensuring that the hearing was effective and not using the pandemic as an excuse for an adjournment (a risk highlighted by Mostyn J and HHJ Hess).

We had some hiccups, largely centring around the inability of anyone using a new Mac to be heard on the Skype for Business platform if they use their computer’s microphone; but once we had manoeuvred around that, the hearing went without a hitch. The lessons I learned are:

• At least two weeks before the hearing everyone concerned, including the court, should agree which platform to use, who will be where, and who is going to host and test the technology. Contact details need to be exchanged and provision must be made for an electronic bundle to be filed and served well in advance.

• Everyone should have two screens if at all possible (one to see the participants and one to see the bundle). Oddly, when using a device other than a PC it is not possible to have everyone in gallery view.

• Those giving evidence should be forewarned that if they wish to swear on the Bible or other holy book they should have one to hand. The Judge will ask them to repeat whatever oath they wish to take.

• Everyone due to speak should be in a quiet place where they can be heard. They will be asked to confirm that they cannot be overheard. Those not speaking will be asked to mute their microphone. In our hearing the sound was generally good and it was not necessary for any of the witnesses to use headphones, but it might be a good idea to have some at the ready in case of feed-back.

• Each team should agree in advance a method of communicating in private both during the hearing and during any breaks. We used email and Zoom.

• It is likely that the court will want to keep the link open throughout the day and it is important to remember to mute your mic when you don’t want to be heard.

• It is important to have power leads available to keep your batteries topped up, and ideally, to preserve bandwidth, no one else in the house will be doing anything similar.

• Finally, these hearings are oddly tiring, and regular breaks are needed.

The key to the success of these hearings is familiarity, and having negotiated one without significant difficulty I am confident that there is no reason further hearings should not be equally successful. Nobody should be concerned that they will not receive a fair hearing or that the process will result in an outcome which is less than satisfactory.

FDRs present a slightly different challenge, given the need for regular inter-parties negotiations, but again, provided arrangements are agreed in advance for the practicalities, there is no reason they should not be eminently doable by video-link.

Few of us will pretend that the current situation is as good as meeting in the real world. It will always be preferable to sit in the same room as one’s client and opponent, and the sight and feel of a courtroom and a Judge will always be a greater imperative to settle than sitting in the comfort of one’s own home. Until we are released back into that world we must make the best of what we have, and do everything we can to ensure that life continues for those unfortunate enough to be going through the trauma of a divorce. As we all get used to the available technology we will realise that it isn’t as bad as we thought.

If you would like any further information on the team or anything raised in this article please contact me on Nicholas.sproull@albionchambers.co.uk or my clerks Julie.hathway@albionchambers.co.uk and Michael.harding@albionchambers.co.uk