It is no surprise that months on end shut indoors with a partner or spouse with limited opportunity to leave compounded by financial worries, may act as a relationship stress test. Some families will have found that this time will have brought them closer together. Sadly for many it has accelerated the end of their relationship.
Recent data published by Citizens Advice indicates that this will translate into increased court applications as people look to formally end their relationship. It is already clear to practitioners at 4PB that many couples with children have had to access the courts in order to resolve issues created by lockdown and the pandemic. It has also generated unique problems for financial remedy cases (difficulties in valuing businesses, house sales falling though/ changing). In respect of those couples separating post lockdown, though financial aspects of divorce may take more time to filter through to the courts there can be no doubt that an increase in numbers litigating is, sadly, on its way. Barristers at 4PB are being increasingly asked to advise at an early stage on strategy and outcome in these cases as well as interim applications.
However the court landscape that litigants will encounter does not present an easy way out of the quagmire they may already be in. Courts are dealing with a huge backlog of cases. This was the case prior to lockdown due to cuts to funding meaning less judges sitting and fewer court rooms open. When lockdown forced some courts to cease operation this exacerbated a long standing problem. Now remote hearings are the new normal, and can be a very effective platform, however not all cases and hearings are suitable to be heard this way. In particular those where complex, lengthy live evidence is given are often more suited to in-person or hybrid hearings. Such listings are difficult to obtain, particularly for private law and financial matters, as more urgent cases are prioritised (e.g. care cases), and those that are open have reduced capacity owing to social distancing measures.
Remote hearings often take longer and require more comfort breaks because of the level of concentration required to stare at a screen for prolonged periods. Many courts block list in person cases so the judge can work through the list in the most efficient way. Remote hearings are not suitable for this and require time slots which they may exceed. If they take less time it doesn’t mean the next case will start early. As a result often a judge hears less cases remotely over the course of a day. There is also more limited scope for prehearing negotiation to limit the issues. Some courts are listing cases with a standard time estimate which is too short for a particular case: recently one particular court was only listing final financial remedy hearings for a day and by phone. Most require at least 2 days and live evidence, resulting in many fixtures being adjourned. Hearings listed before three magistrates are now routinely being put before legal advisers, because of social distancing concerns. They have no jurisdiction to make decisions about contested issues: one such case heard in early August had to be adjourned and neither a bench nor judge could hear it until January 2021. When a judge does become available they will have to prioritise the most urgent issues rather than being able to resolve everything: adjourning some issues to future hearings and placing more pressure on future lists.
The corollary is that courts are operating at reduced capacity. There is now a much longer wait for hearings and justice, when it comes, may well be imperfect in substance as well as form. For clients this means uncertainty and delay. With increased delay comes increased cost. People are waiting an excruciatingly long time to get any relief on issues which cause severe emotional distress: whether they can see their children, whether they will lose their home.
HHJ Wildblood QC recently published a judgment giving a stark warning about the proper use of court time. He confirms that in his court by January 2021 they will have double the number of outstanding private law cases that they had in January 2020. In Re B (a child) (Unnecessary Private Law Application)  EWFC B44 he said: ‘… the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.
This chimes with other judicial guidance issued recently by the President and financial judges at the Central Family Court which also encourage practitioners to steer their clients into non-court based forms of dispute resolution.
This is not now a question of preference, but one of necessity. Unless more funding is made available so that more judges can sit and more court rooms can be opened the only viable alternative for litigants will be ADR. Methods such as mediation, arbitration, early neutral evaluation, private FDRs have become a lifeline for litigants in these times, who can no longer expect swift justice from the courts. Rather than being considered a secondary option to the court, there are many reasons why they should be considered the first option.
ADR is more cost effective, more efficient and less adversarial than the court system. Quasi-court forums like arbitration and private FDRs offer the clients the opportunity to pick their ‘judge’ who can be someone who is a true specialist in the area of law (DJs and CJs hearing family matters may have not been family practitioners). They guarantee ‘judicial’ continuity as parties will have the same arbitrator throughout, making the process more efficient and cost effective. Importantly for many clients, they can dictate the timetable and matters can be heard very quickly, within days or weeks. Crucially methods such as arbitration do not require the parties to reach a consensual outcome, as is the case with mediation, which if it fails often means clients have to access the courts anyway. An arbitrator can and will make a decision which is binding on the parties and treated as such by the court. This means a more level playing field in negotiations and decision making because a party who might have more to gain from a delay cannot manipulate endemic delay in the system to achieve an advantage.
ADR puts clients back in control, rather than at the mercy of the court system. They can dictate the pace and the terms and even the ‘judge’; they are therefore far less fraught with emotion and stress. It should be an easy sell for clients. Those practitioners worried about being able to find suitable specialists will find many specialist arbitrators, mediators and part time judges at 4PB who are available to conduct arbitrations, ENE, private FDRs and mediation.