The theory is a sound one, but theories need to be put into practice. To put them into practice the courts need to have resources. A key resource is to have sufficient judges with the relevant expertise to be able to decide the cases. My experiences of the last 10 days suggest that despite the fanfare for the new Family Court, the resources to make it work in a way which is fit for the demands of consumers of legal services in the 21st Century are sorely lacking.
In the week before Easter, the last week of the old Principal Registry as a divorce county court, I was instructed to act in a substantial financial remedies final hearing. The assets were large. The issues were complex as the parties’ assets spanned a number of countries in Europe and beyond. The trial bundles amounted to some 8 level arch files. I spent several days preparing. Counsel on the other side did the same. The costs were by any standards already very high. The final hearing dates had been fixed 9 months earlier. My client was non-resident and had come into the country to prepare for and appear at the hearing. As a non-resident for tax purposes his days in the UK are precious. Late on Friday evening before the case was due to start on the Monday we were told that no judge had yet been found to hear the case. On Monday morning that remained the situation. Only late on Monday were we told that a judge could probably hear us for 3 days starting on Tuesday. However, as the case would require substantial judicial reading time it was clear that we would not finish the case in the time available. Fortunately the parties were able to reach a settlement and avoid the need for an adjournment. It was, however, a close run thing.
A week later I found myself in the Family Court on its first day of existence on a one day final hearing. Upon arrival at the hearing centre in a small town in the Home Counties I was met by obvious consternation amongst the court staff. I was told there was no judge to hear the case. After waiting until mid-afternoon we were told to come back in two weeks time when a judge would be found to hear the case. Both sides will incur further fees for the new hearing. The costs were completely wasted, along with all the angst and worry the parties had already experienced in building up for what they expected to be the conclusion to their case.
Now on Thursday, only two days after the last fiasco, I sat down to begin to prepare for a final hearing due to take place next Tuesday. After reading only a little my clerk telephoned me to inform me that he had just been told that the case has been taken out of the list by the court because there is no judge. My brief fee has been incurred by the client with nothing to show for it. I am not available on the date the case has been relisted.
All this on the back of an appeal I appeared in at the end of March 2014. Judgment was reserved by the judge. Still there is no word as to when the parties might expect to receive the judgment on the appeal.
Is this the kind of court service which is fit for purpose? The emotional and financial costs of preparing for final hearings are very high indeed. The parties incur those costs only to find that the court declines to honour the booked hearing date at the last minute. A hearing date for which the parties have already had to wait many months.
Perhaps this is deliberate policy to discourage use of the courts. Certainly there is no better advertisement for family arbitration. When I am instructed as an arbitrator the parties have contractually booked me to determine their case. I am providing a service and I am expected to honour the commitment I have entered into. The parties have paid me to read the papers and prepare for the hearing properly, so I do so. Thoroughly and in good time. If the parties need to change arrangements for the arbitration due to their or their lawyers’ commitments I do my best to accommodate them. If I do not provide a good service what chance of recommendations for future appointments as an arbitrator?
Why are there not more lawyers advising their clients to ‘go private’ and arbitrate? Surely it is only a matter of time before a lawyer faces a complaint for failing to advise a client of the savings of costs and time in arbitrating rather than facing the delays and vagaries of the courts.