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Farquhar Committee reports on the Financial Remedies Courts

A committee led by HHJ Stuart Farquhar (Lead Judge of the Kent, Surrey & Sussex Financial Remedies Court (FRC)) has published its report on the Financial Remedies Courts.

HHJ Stuart Farquhar was asked by Mr Justice Mostyn earlier in 2021 to convene and lead a committee consisting of a geographically diverse collection of judges at all levels of the judiciary and practitioners to consider (i) the role of remote courts in the post-pandemic environment and (ii) the procedures of the Financial Remedies Court.

The committee's report considers the issues in two parts.

Part 1 – The role of remote courts in the post-pandemic environment

Part 1 finds:

Remote Hearings: The advantages of continuing with the use of remote hearings outweigh the disadvantages and there should be a number of hearings that should continue to be heard remotely. There now exists a good understanding of the benefits and disadvantages of remote hearings.

Which hearings are to be heard remotely? The majority of hearings at which no evidence is to be given should be heard remotely. The exceptions to this will be FDRs, enforcement hearings where the liberty of the individual is at risk and appeals. Hearings for MPS and LASPO applications should be attended. All final hearings are to be held at court.

How should parties attend remote hearings? The issues of (i) inability to connect/dropping out and (ii) inability for a party to provide a quick response to their legal team, could be reduced if the parties attended the hearing from the same venue as their representative where there would hopefully be the availability of reasonable technology.

Process for considering which hearings are to be remote: The default position for each type of hearing is set out above. If any party wishes to apply for the default position to be varied then this must be by way of formal application. Each application will be considered on its own merits but the type of issues that are likely to be persuasive include lay parties or litigants in person without the appropriate facilities/equipment to conduct a remote hearing; to avoid parties in the same household attending remotely from the same location; where an interpreter is required if this cannot be managed otherwise; or where a litigant has a disability which makes remote attendance more difficult for them.

E-Bundles: All hearings which require a bundle will use electronic bundles unless specifically ordered otherwise. This is to be the case whether a hearing is remote or attended. It is vital that all bundles comply with the Protocol and are paginated, searchable and bookmarked. There must be more rigorous use of PD27A paragraph 12 which states that a failure to comply may result in a Judge removing the case from the list or the making of adverse costs orders.

Which platform? In terms of video platforms, the conclusion is that the best performing platform is Zoom and, although Zoom is not currently 'supported' by HMCTS, it is the recommended one to use.

Technology: It is axiomatic that all parties and the Judge involved in any remote hearing must have access to the appropriate technology. In particular all Judges, including fee paid Judges must have the use of a laptop and at least two screens as well as access to training/technical assistance whilst sitting.

Litigants-in-person: It is not considered appropriate to make any separate rules concerning those that represent themselves in remote hearings any more than it is at attended hearings. The vulnerabilities and ability to access justice of any litigant-in-person must be taken into account at all times.

Part 2 – The procedures of the Financial Remedies Court

In Part 2 of its report, the committee recommends as follows:

Listing: This needs to remain at a local level but it is considered that each case should be provided with its own time slot and that First Appointments should be allowed 1 hour and FDRs 1.5 hours – the FDRs should all be provided a morning listing.

Staffing: Each Court should have a dedicated FRC member of staff who would be familiar with the digital platforms and would be responsible for ensuring all of the documents are before the Judge. They should also provide the judge with available dates for future hearings in advance.

Explanation of the law and procedure: The parties should be provided with a simple, neutrally phrased set of guidelines and principles which should be sent to all parties upon the issue of Form A.

Form E: There should be amendments to include date of cohabitation, information on mortgage capacity, suggested property particulars and a change of wording in relation to "orders sought" to make it more user friendly.

Valuation of matrimonial home: This should be agreed or obtained prior to the First Appointment.

First Appointment documents: The Statement of Issues should no longer be required. A composite schedule of assets, chronology and case summary should be prepared at each hearing with input from each party, noting which areas are not agreed. There is a minority view that the costs and logistics of this occurring would be too great at any hearing other than the Final Hearing.

Length of documents: There should be limits on the number of pages for skeleton arguments and S.25 statements.

Advocates meetings: These should occur three days prior to a hearing to attempt to narrow the issues between the parties and agree a hearing template to include reading time and time to prepare/deliver judgment. There is a minority view that these should occur "when possible".

Orders and hearing dates: The order should be drafted in advance of any hearing and settled on the day. All parties should attend with their availability and a date for the next hearing provided before they leave court.

Encouraging non-court dispute resolution: This should be encouraged at all stages of the proceedings.

Consent orders: The D81 form should be amended to assist the judge in being able to approve the order.

Appeals: The ability to prohibit oral hearings for appeals that are judged to be totally without merit should be extended to the Circuit Judges that are ticketed to hear such appeals.

The committee also considers that if a fast track procedure is introduced to deal with the less complex cases, then this could ameliorate the situation for the parties and also alleviate some of the back logs within the FRC. The committee proposes that this procedure should be utilised in cases where the net assets do not exceed £250,000 at this stage. This threshold could be increased to £500,000 in due course if the pilot scheme is successful.

For both parts of the report, click here.

24/10/21