THOUGHT PRIVATE FAMILY LAW HEARINGS WERE FOR THE ELITE? THINK AGAIN
The impact of COVID-19 on the judiciary has been significant given that it was already struggling with administrative problems long before the pandemic. Family lawyers have become used to warning divorcing clients to be prepared to wait months for the turnaround of documentation and the listing of hearings. What became clear as the lockdown took hold was that the courts simply could not deal remotely with all hearings in the court diary because they did not have the technology or staff in place.
Pre-COVID, the court diary accommodated children and financial cases. Multiple contested cases used to be listed daily and a judge would work his or her way through the list during the day, starting at 10.00am and rarely finishing later than 4.00pm. In our ‘new normal’, everything became slower, technological difficulties arose, and difficult decisions had to be made about which family cases to focus on. First to fall foul of the courts’ struggles were financial hearings for divorcing couples. The courts chose, not unreasonably, to prioritise children cases, particularly those involving abuse or vulnerability. This meant, however, that couples who had already waited months for their financial hearing were suddenly told, sometimes just 24 hours before the hearing, that their case had been taken out of the court diary and would be re-listed in a few months’ time. Many couples are still waiting to learn their new hearing date.
So what happens if you cannot resolve the dispute between you, but you do not, or cannot, wait months to resolve finances through the court? There is an attractive alternative, the efficiency of which has particularly proven itself during the pandemic.
A contentious financial case begins with a formal application to court that triggers three main hearings; almost all cases require the first two hearings. The first hearing is called a First Directions Appointment (FDA) and is effectively a housekeeping appointment. Has each spouse filed enough information about their finances? What issues are agreed and what is in dispute? Is any further information required from other experts, such as on tax or property values? A judge will direct next steps at the FDA hearing. However, good lawyers should be able to agree between themselves and their clients what directions are necessary to move forward and file these electronically with the court. If so, this avoids the wait to attend court for a FDA and instead allows the spouses to press on to the next stage. This is all the more valuable in the present pandemic when there could be a wait of months just for a judge to tell you what to do next.
The second hearing is an important one and is called the Financial Dispute Resolution hearing (FDR). At this hearing, a judge will give a non-binding indication as to how he or she thinks the financial dispute ought to settle. The judge hears submissions from each side, usually made by barristers for each spouse, and then hints at how the dispute will be resolved by the court if a Final Hearing becomes necessary. The judge then leaves the spouses and their legal representatives to continue negotiating at court to see if the case can be resolved that day. The indication has the benefit of focusing the spouses on what they are realistically like to achieve at Final Hearing. At a Final Hearing, the third hearing, the judge makes a final decision, whether or not the spouses like it. An impressive 85% of cases settle at FDR stage because most spouses still want an element of control over outcome. Having understood how the court is likely to resolve the matter, they are keen to avoid the stress and expense of a Final Hearing and so negotiations become more effective.
So how do you experience a FDR when the court will not list one for months? The answer is a private FDR. At a private FDR, the court timetable is effectively side-stepped and the spouses make their own arrangements to hire a ‘judge’, who is usually a senior family law barrister, to provide the non-binding indication. If negotiations are successful, the case settles; if unsuccessful the spouses move back into the court timetable to await a Final Hearing. Whatever the outcome of a private FDR, the spouses have still saved themselves months of waiting and legal fees.
So how does a private FDR work? Surprisingly simply, is the short answer. Both spouses must agree to a private FDR and then it is just a matter of finding a suitably experienced and available barrister. The private FDR is prepared for just as if it were taking place at court, but the spouses have the opportunity to arrange the private FDR to their convenience. This short timeframe can be particularly beneficial for cases which have momentum to settle and for which the spouses just need a helping hand to get themselves to a final agreement.
In a standard FDR at court, clients and lawyers often huddle in packed court waiting rooms or corridors trying to whisper personal and sensitive details about their case, hoping they will not be overheard. The judge will have about 30 minutes spare to hear submissions and give an indication. The atmosphere is stressful, impersonal, often rushed, and overwhelming.
By contrast, a private FDR takes place either in the barrister judge’s chambers, or, as presently, remotely on platforms such as Zoom or Microsoft Teams. The spouses have the luxury (and it is a luxury) of having the ‘judge’s’ undivided attention for the whole day. If either want to go back before him or her at any point for clarification on a point, this will be accommodated. The judge will have had time to read and consider the papers in advance (also a luxury); there is a vaguely less formal air, though the FDR should still be taken seriously; and there will be all-important refreshments for refuelling. If the private FDR is taking place remotely, there is not even a time limit on how long the day lasts, provided it will end in agreement. A private FDR I recently attended via Zoom started at 9.30am and finished at 7.30pm, resulting in agreement. No-one minded the late finish because no-one had to commute home.
With significant numbers of family law court hearings being delayed due to the pandemic, barristers’ chambers are happy to negotiate on fees. A private FDR can cost between £2,000 - £5,000 plus VAT, which is shared between the couple. In the context of what can be spent on lawyers’ fees over several months, a focused spend is a sensible one. In terms of timeframe, the wait for a private FDR can be short. The FDR I refer to above took place just 7 days after the court had suddenly cancelled the couple’s FDR court hearing. The cost of that private FDR was a very reasonable £2,500 plus VAT for a respected senior London barrister, who also happens to sit as a District Judge. Both spouses agreed it was money well spent because it shortened timeframe for resolution by at least six months, and capped their ongoing legal fees.
Peace of mind sometimes comes at a small price, but it can also be absolutely worth it if it brings closure and leaves you with extra money in your pocket.
Georgina is Head of Family and a Partner at Prettys Solicitors LLP. For advice on family law issues, and to understand how Prettys’ Family Team are unique in using creative and cost effective ways to resolve family disputes, please email email@example.com or telephone 01473 232121