Remote hearings in light of Covid-19

Jack Rundall reflects on an F.D.R in Financial Remedies proceedings conducted remotely in light of Covid-19.

Persuading the court to deal with this matter remotely was not easy. The court office was hell-bent first on requiring the parties’ personal attendance and, thereafter, on adjourning the hearing indefinitely. It was only in the face of repeated entreaties from the parties, and eventually an email to the DFJ, that a remote hearing was set up. As an aside, this particular court does not appear to be alone in its reluctance to embrace remote working. I’ve just had a Final Hearing listed during the last week in April adjourned by another court on the basis that they “do not have the technology in place to deal with remote hearings”. Whether or not regional courts do intend to comply with the President’s Guidance in the fullness of time remains to be seen. What makes this all the more frustrating is that; (i) the rest of the world has adapted to remote working in a matter of days and (ii) my limited experience of remote hearings is that they can work very well.

This case was no exception. Whilst the court declined to set up a hearing over Skype for Business/Zoom etc I was able to speak with my client before the hearing to discuss matters generally. We did so in private rather than in a cramped waiting area where we were forced to eyeball the other side. Having refined his without prejudice position I then fed this back to my opponent (by telephone) before we were called by the court at 09:50am and joined by the judge at 10am (is this the first hearing in human history which began when listed?). The judge gave each side 10 minutes to make submissions and then gave an indication which I typed and emailed to my client. At the end of the call we discussed and agreed directions on the basis that the case would not settle and the judge gave us 48 hours to either email an order containing those directions, or to otherwise provide a consent order for her approval. After the call I gave my client 10 minutes to read the indication and then video called him to discuss this. Having obtained his instructions, I phoned my opponent and explained his position. Further negotiations then took place over the rest of the day by telephone before the parties arrived at their final positions.

Positives:

1. Not having to travel to Slough;
2. Having a conference with the client in private before the hearing;
3. Not being constrained by the court hours. We were still negotiating at 6pm when we would ordinarily have been turfed out onto the street. In fact, one party was able to ‘sleep on’ an offer before committing themselves to a position;
4. Not having the matter adjourned for many months so that the court can avoid its responsibility to deal with matters remotely.

Negatives:

1. The fact that the parties weren’t in the same place at the same time perhaps meant that negotiations carried on longer than might have been strictly necessary;
2. Probably, that finite amount of time in usual FDRs impresses on people the need to settle;
3. Negotiation between advocates via telephone might not be as productive in more factually complex cases.

Overall, this must have been a far better option for the parties than an adjournment, but might not have worked so well in a more factually complex case. In such cases the parties may wish to seriously consider a private FDR. Chambers can offer these remotely, with “private areas” for each party and a “communal area” for the judge. We have a range of counsel able to act as the judge (financial specialists, not DDJ whose day jobs may or may not be related to family law). Other sets are available.

If you would like any further information on Jack’s practice or have any other queries in relation to remote hearings or private FDRs please contact our clerking team via our switchboard 020 7353 0711 or email. Members of Chambers and all our staff are currently working remotely. Our switchboard remains opens from 8.00am until 6:00pm and all our clerks remain available via email and telephone, please refer to the clerks page here for up-to-date contact details.