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A week is a long time in a pandemic

Date:27 MAR 2020
Third slide
Barrister, arbitrator and mediator

I last physically appeared in court on the 17th March 2020. I travelled 4 hours to spend a morning in court. I went on three trains and stayed overnight in advance. I was twitchy about doing this, but my diary demanded it and the scale of the lockdown was yet to be upon us.

I write this on the 27 March 2020. In ten days, life has completely changed.

Context first. This is a global pandemic. People are dying. Lives are being destroyed. NHS workers are bravely going into the fray without, it seems, good enough protective equipment.

The rule of law and the various ways in which it is applied in our lives remains important.

I don’t begin to suggest that the area of law with which I am most concerned, financial remedies, is that important in the current global and national context. But people are still getting divorced, wanting their financial affairs tidied up and those engaged in the practise of family law still have practices to run, clients to serve and bills to pay.

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In the pursuit of trying to keep things going professionally I seem to have spent the last week running to stand still.

Every day appears to have brought its new IT challenges. Trying to download Skype for Business. Mastering the various platforms, Zoom, Lifesize and Teams. The dummy calls trying to make them work. The dodgy webcam.

Mostyn’s early guidance to “go remote” and “deploy ADR” was judicial leadership at its most prescient. It perhaps took the rest of the court system too long to see that physical hearings were too much of a danger to public health. Mostyn J’s guidance even seemed like an opportunity at the start of the week. That was a long time ago. As the week has ground on however, the exponential scale of the problems for family law have grown.

The practice of finance related family law is not going to be kept ticking just by going remote or doing it privately. The stock market is in freefall. The property market is frozen. Reports prepared for houses, pensions and companies just a couple of weeks ago may now be works of antiquity. There is a new normal and with it, paralyzing uncertainty and fear about what the future holds for us all.

Quite how any cases can be safely settled or adjudicated upon at this time will take careful thought. Who can now state with confidence their net value? What mortgages are going to be available in the coming months? Who will have an earning capacity, let alone a bonus? Unless Wells v Wells type sharing can tie both parties’ futures to what the future holds, now may simply be the time to adjourn and sit out the next few months.

Cases resolved over the last few months may require review. Based on the experience of Myerson v Myserson [2009] EWCA Civ 1258, [2011] 1 FLR 537 changes in the market are not “Barder” events. Quite how this pandemic will be classified is anyone’s guess. Economic ruin now stalks the land. Will the courts take a different view to Myerson following this crises? For those cases where the order has yet to be sealed, do not overlook the “Barrell” jurisdiction, which allows a court to change its mind prior to sealing. The modern exposition of this power is to be found in the Supreme Court decision of  Re L and B (Children) [2013] UKSC .

Whilst the High Court has responded impressively, hearing complex cases on Skype for Business and issuing, in collaboration with the FLBA and others, the most incredibly helpful document on the Remote Family Court. Many will be suffering guidance fatigue (one wag put it that they had given up reading fresh guidance emails 30 emails ago) but MacDonald J’s Remote Family Court is your essential read this weekend.

Further down the judicial ladder the picture is more complex. There are heavy lists stretching until next year. Practitioners and those who attend the Family Court will be only too aware as to how busy the district judge’s list can be in any given court. It is a logistical nightmare made worse by staff and some judges rightly having to self-isolate for a time. There are reports of melt downs and court staff in tears. One commentator fairly tweeted that lawyers should lay off HMCTS for the time being.

Even if it is technically feasible to run heavy lists all remotely, not all judges yet have the IT skills or paperless experience to do this with confidence. Basic points like having two screens – one to view and one to view a bundle on – have to be overcome for judges working from home for the first time. PDF bundles require “readers” which will allow flagging and manipulation. Tech savvy lawyers might be at home with these skills, but like riding a bike, they are skills which have to be acquired with some practice and a few bumps along the way.

I have even read a report of a district judge (who I expect is in a tiny minority) who is apparently calling his brother judges to beware that if the current crises is managed well, HMCTS will use it against them in future, in its drive to reduce the court estate and make justice more digital.

I have spoken to many people in the last week. Really senior practitioners from around the country who are almost frozen rigid by the demands of going paperless. The high street sole practitioner, fearful as to whether they can survive at home with few paperless skills and little more than a home printer. I have also spoken to some leading practitioners who have yet to undertake an arbitration and are unsure what to do. The IFLA website contains the contact details of nearly all qualified family arbitrators in England and Wales. I am sure I speak for most in saying that arbitrators will be more than happy to chat anyone though the basics.

This is not business as usual. Diaries are collapsing either due to court logistics or due to the fact that it would be negligent to settle or fight now. If lawyers do seek interim or final arbitrated decisions, expect many senior practitioners to be available at short notice.

I have found Twitter an invaluable information exchange in the last week or so. I have found Ishan Kolhatkar’s short webinars on how to do a remote hearing an invaluable resource. Although not a family lawyer, Gordon Exall’s feed and blog have practically been public service broadcasting to rival the BBC, in terms of lawyer relevant posts of cascading guidance and sharing tips for how our remote practices are going to work for the time being.

The FLBA and Resolution have stepped up to the challenge in a manner which can only be described as awe inspiring at this difficult time. The FLBA provided paperless training to 500 members via Zoom on 26th March. The accompanying materials are free from copyright and can be shared with anyone who is trying to grasp the essentials. I salute Darren Howe QC, Matthew Maynard and Elizabeth Isaacs QC for the brilliant feat they pulled off, whilst casually sipping gin and tonics! At the time of writing George Mathieson has just put out on LinkedIn a guide to how pensions should be approached in the crises.

But for the time being, whatever the problems we face, they are but secondary to the national fight against “The Curve.”

The clapping for the NHS on Thursday night was moving. It brought to mind a passage from Anthony Beevor’s D-Day. As the Allies advanced through France one soldier records, “The woods seemed to cast an eerie spell. [We] suddenly heard a soft, gentle clapping. As we came closer we could see shadowy forms of French men, women and children, lining the roadway, not talking, some crying softly, but most just gently clapping.”