COVID-19 and Court proceedings: Another reason to consider (alternative) Dispute Resolution

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By Jackie Mensah, Family Law specialist

Two weeks before the official Lockdown, I found myself in the heavily congested waiting area of the ground floor of Worthing Magistrates and County Court. The place was heaving with anxious, nervous, bored, fidgety people, and the tension was palpable. The staff were visibly stressed: the flimsy regular partial screen on the reception desk was instilling no confidence whatsoever. Not a drop of hand sanitiser in sight (a Clerk told me that “the government won’t stretch to that”) and everyone making glaring eye contact with anyone who made the mistake of coughing.

To be fair, this was before the whole social distancing restriction became real and was at the “please don’t kiss or hug me” level. But, the uncomfortable proximity of all attendees was like the elephant in the corner, which, well, wasn’t in the corner even.

  • As well as representing clients in Court proceedings, I enjoy looking after clients as a Collaborative Lawyer. Collaborative is a dispute resolution option which ensures that those going through a difficult personal time retain control of the decisions made. The experience entails respective solicitors and clients engaging together, in joint meetings and discussions, at agreed venues, but most definitely not at Court and upon all agreeing not to issue proceedings. It is flexible and paced to match needs and can be very economical. It is about communication and respect. At present, meetings can be facilitated via various video conferencing platforms, to suit our client’s.

Sometimes there is no alternative but to issue Court proceedings. Some cases are a matter of ensuring safety and are just too serious or just too entrenched, sadly, to be suitable for dispute resolution of course. There is national guidance as to how the family courts are to operate remotely now. The challenges identified include remote issuing of applications; judicial access to the range of software platforms; the attendance of witnesses and interpreters; litigants in person (parties with no lawyers representing them) and security.

Hearings are to be conducted by email, telephone video or Skype. A telephone conference will be utilised if a party is unable to attend by video platform. The court and users will have to choose the software platform suitable for all involved in a case, which can include Skype for Business, Zoom and FaceTime. The procedure needs to be as close as possible to the normal operation of a court. It was the case that electronic bundles of documents and emails were preferred by many Judges anyway.

While the default is that Family Court hearings should be conducted remotely, this does not preclude live court based hearings taking place if they can be conducted safely and if necessary in the interests of justice. Protocol for Conducting Safe Live Court Based Family Hearings During the COVID-19 Pandemic  provides guidance about those most at risk, listing live hearings; the separation of people during the hearing; the conduct of hearings and, importantly cleaning (no more random sneezing going undetected).

Those cases unsuitable for remote hearings or live court based hearings are being adjourned. There will be (greater) delay in some areas, therefore.

Everyone attending Court should note that…

  • Social distancing will be maintained in courts and tribunal buildings, in that users will be asked to ensure there is at least 2 metres’ separation between everyone at all times, including when queuing to enter courts and tribunal buildings; going through security checks; inside hearing rooms and public galleries; in jury assembly areas; in jury retiring rooms and when moving to and from courtrooms.
  • Arrival times, lunchtimes and times for leaving buildings at the end of the day will be staggered.

HMCTS (Her Majesty’s Courts & Tribunals Service) will continue to update this guidance when new advice is available.

By the way, on returning to the office after my brief time in Worthing Court that day, a colleague and I concluded that it was not just the issue of the government purse preventing hand sanitiser being made available (even fixed to a wall-?). It was the fact that there will be someone, always, who will see the opportunity to top up their daily alcohol units, even in the most unlikely of circumstances…

Jackie Mensah is our Family Law specialist. If you (or anyone you know) could benefit from some advice then our Family Advice Clinic provides a great opportunity to secure a complimentary 15-minute slot with her. Book in seconds by heading to our dedicated Family Clinic page and selecting your complimentary slot today.

Disclaimer – Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.