Dear all,
The Derby and District Family Committee attended a meeting with HHJ Williscroft and DJ Davies together with Mr Matt Bradley Family Section Leader and Ms Jo Price to discuss issues affecting financial remedy and private family court business.
The following issues were discussed:
Financial Remedy Hearings
There has been a meeting of the East Midlands Lead Judges led by HHJ Mark Rogers.
The Financial Remedies Court is not working effectively at the moment so electronically filed documents are not being uploaded in time for hearings. It will all catch up in due course but at the moment the court is dependent on physical or emailed Bundles.
FDAs:
These can generally be dealt with effectively by telephone.
Practitioners are encouraged to read Mostyn J’s Note on Unattended FDA’s which explains how such hearings can be dealt with by agreement or by a short focused hearing if both parties are represented.
FDRs:
How these are dealt with is up to the individual judge.
DJ Davies is listing some for 2 hours with a gap listing 11.00-12.00 and 2.00 to 3.00, so say for parties to take instructions and talk 10-11, 11-12 for submissions and Judge’s input then more time to talk and regroup at 2-3 for an agreed order or directions. If the 2-3 session is not needed (usually no settlement) then directions and queries can be dealt with by email in some cases. This is only a suggestion as to how these may be facilitated in an appropriate case.
This works best if both parties are represented.
FDRs can be dealt with by Skype. DJ Davies recently undertook a lengthy MPS hearing by Skype. The lay clients were in email/text contact with their counsel out of earshot.
The problem will be with final hearings unless they are on submissions only which is rare in practice.
The judges are encouraging private FDR’s and other dispute resolution options such as arbitration where appropriate.
The court recognises that particularly with the problems with the FRC at present there are limitations as to the filing of documents and bundles.
If a bundle can be provided by email that is the ideal but if circumstances prevent this Position Statements and Case Summaries with an asset schedule may have to suffice.
Practitioners should assume that the judge has no access to the physical court file or to any documents which may have been physically filed with the court.
The court recognises the limitations experienced by practitioners working from home. All are referred to the recent guidance circulated by HHJ Williscroft .
There are some residual non FRC cases at Derby which are presenting a problem in practice because the judges are for the most part remote working and have no access to the paper file.
There are four district judges locally who are dealing with financial remedy cases led by District Judge Davies, the others being DJ Parker, DJ MacCuish and DJ Revitt. DJ Wall is during CV19 working out of Nottingham and Mansfield and will not be undertaking Derbyshire FR work until further notice.
For the most part District Judge Davies will be able to ascertain which judge is dealing with a particular case and will, upon request inquire with that individual judge as to whether they would be prepared to accept direct emails from practitioners. For his part District Judge Davies has no objection to practitioners emailing him direct. This however will only work where both parties are represented and under no circumstances must any judge’s email address be disclosed to litigants in person.
Emailing the judge directly will however speed matters up insofar as the court is currently being inundated with emails which it is incredibly hard for them to keep on top of with limited staff.
We are likely to be facing some interesting cases where parties are arguing that the COVID-19 crisis is a Barder event.
So far as listing is concerned, the court should not be listing on a day by day basis. At worst they should be looked at on a weekly basis but it is recognised that this can cause problems in big money cases where the parties are worried about the preparation costs and in particular counsel’s fees.
If there are any significant cases where practitioners are concerned about the case being pulled at the last minute with the consequent liability for counsel’s fees the practitioners are invited to email District Judge Davies and he may be in a position to make inquiries as to whether or not there is a real likelihood of the case being pulled. The default position is likely to be that wherever possible FDA’s and FDR’s should proceed, but FH’s are likely to be stood out until there is courtroom availability in the usual way.
Practitioners are however encouraged not to take advantage of this option in every case. Please reserve the judge’s offer to the bigger money cases where significant counsel’s fees are an issue. Importantly also that offer is only whilst the current COVID-19 crisis is keeping the country in lockdown.
Emails: it would help considerably if practitioners could please headline emails appropriately assessing urgency and what we want the court to do with the email. The court is currently being swamped with emails all marked urgent without any objective assessment as to how urgent the matter is and what is required of the addressee.
Technology: the courts general preference is Skype. The court cannot use Zoom for confidentiality reasons. Microsoft Teams is good but not everybody has it.
Some practitioners have used BT Meet Me with some success. Skype can be variable.
It will be helpful if practitioners can liaise and advised the court as to the options which all involved parties can use effectively. Otherwise Skype or BT MeetMe will be the default position where both parties represented.
It will also assist the court greatly if one party could take responsibility for emailing the court with an email containing all of the email contact details which will save considerable time in a member of court staff having to individually locate and import all of the contacts.
It is understood that the magistrates are generally relying on telephone hearings. The general view however is that this is not ideal. Whilst these are challenging times for everybody, justice must be seen to be done and the parties, particularly those who are unrepresented, need to engage with the process which is difficult for them to do when they cannot see the judge.
The court is not expecting litigants in person to be able to access E bundles.
Domestic violence cases:
These are presenting their own challenges. Practitioners are referred to HH J Williscroft’s guidance.
The court is continuing to deal with and will prioritise domestic violence injunctions. There are clearly difficulties however with holding hearings in open court. As perhaps we might expect in the current circumstances there has been a hike in domestic violence applications.
Final hearings: there is a real concern about final hearings and whether and to what extent the parties can actively engage in remote hearings. This involves not only the technology issues and the procedural problems, but also the additional very real concerns the parties are having as result of the impact on their lives and those of their families as a result of the current pandemic and how this may impact on their ability effectively to prepare for and participate in what are very significant decisions about their lives.
Finally, all practitioners are encouraged to provide their feedback for the Nuffield review on unattended hearings which will inform future court decisions as to how remote hearings and the lessons learned as result of the current crisis can be utilised in the future.
The practitioners are grateful to the judges for taking the time and trouble too engage with the profession on these issues. it is hoped that further meetings can take place in the future as and when needed and if any practitioner is experiencing any particular difficulties could he or she please forward details to Fiona as Secretary of the Derby and District Family Law Committee and she will collate them and forward them to the judges as appropriate on behalf of the local profession.
| Fiona M. K. Apthorpe Secretary Derby and Distict Law Society Family Committee |