Monday, November 16, 2020
Why Divorce Is The Best Option Instead Of Staying In A Failing Marriage
When filing for divorce with your lawyer is imminent, it’s understandable that one would feel overwhelmed by the negative aspects of the entire process. How will I possibly get by living on my own again? How will this impact the kids? Am I doomed to be alone for the rest of my life? Some people choose to stay in an unhappy – or even downright miserable – marriage rather than face the uncertainties that come with a divorce. For the majority of the populous, there is a general assumption or belief that marriage is a wonderful and satisfying experience. But in truth, most of us know couples who, while unhappy with each other, still remain together anyway.
There are lots of reasons why those in unhappy marriages don’t just simply cut their heavy losses with a quick trip to the law office. Some of the main reasons for hesitancy in the dissolution for marriage include:
- Financial security. Many couples who treasure their financial assets are willing to overlook their emotional unhappiness to maintain their lifestyles when it comes to property division.
- Cost of Divorce. Some may be discouraged by the fees and legal costs that come with a divorce, even though they can be affordable by doing a web divorce.
- Social status. The divorce process can turn everything upside down, including friendships and social status. Many people, especially those in rich families, would rather keep their country club membership, social clubs, and prominent standing than get a divorce.
- Values and beliefs. Divorce isn’t an option for people with certain religious beliefs, family values, etc.
- Children. The idea that the children are better off with both parents together keeps some parents from getting a divorce. In this case, the couple has to revitalize their relationship by force, or at least model civil co-existence in the household.
- Fear of being alone. Sometimes the fear of being alone overrides the desire for something better and more fulfilling.
However, despite these factors, the reality is that it is time to move past this worn-out & ancient Victorian concept by biting the bullet and simply taking the first step. It’s popular knowledge among therapists that in cases of abuse, neglect, or cheating, people can’t walk away soon enough. And it’s a fact that those who are conflict-avoidant are likely to suffer the most in the long run.
Moreover, a bad marriage can be just as damaging for personal health as excessive drinking or work stress. Strong personal boundaries as well as good communication form the bedrock for a relationship that helps people grow. So if this is clearly missing from your relationship, then it’s time for the parties involved to recognize that the “mend it, don’t end it” notion must not be applied by proceeding with divorce papers.
BENEFITS THAT JUSTIFY DIVORCE
It Provides A New Lease On Life:
It’s easy to rationalize the thought that you’re better off staying in a marriage – even if it’s not right – because of the sense of security you feel. But is it worth your happiness? The true love of your life could be out there while you’re chained down in a marriage that’s causing you unhappiness. Divorce, as scary as it can be, is a transition. It’s a new lease on life. You now have the ability to make different choices.
It’s Better Than Staying In An Unhealthy Relationship:
Children learn vicariously through their parents what love, respect, and caring should entail. They’ll likely emulate how both spouses act toward one another when it comes to their own relationships, especially if they are young and impressionable. By displaying negative emotions toward your spouse (or vice-versa), you’re normalizing this behavior in the eyes of your children. The last thing you should want for your child is for them to misunderstand what true love in a relationship looks like.
Allows You To Meet The Right Person:
It may take a while to heal emotionally after getting a divorce. But eventually, feelings of mistrust and low self-esteem do dissipate. It may take some counseling to regain perspective on your own life and learn to love yourself again. But as long as you put the work in, you will heal. And this clears the road for a new partner. Your true love could be waiting out there, and staying in a non-functioning marriage will just prevent you from ever meeting them. It’s better to get over the fear of starting over, and when you’re ready, get back into the dating world. This time around, you’ll be more conscientious of what you’re looking for in a significant other.
A Hostile Home Is Bad For Your Kids Development:
Growing up in a hostile home can be seriously detrimental to children. If you and your spouse are hostile toward one another, your children may develop a fear of being home. Children should never be exposed to hostility. The divorce process can be detrimental to them as well, but not half as detrimental as being afraid of home or being afraid of you or your spouse because of the hostility they witness.
A Bad Marriage Is A Deterrent To Your Own Personal Growth:
When you’re stuck in a bad marriage, your emotional wellbeing is at stake. A bad marriage may be keeping you from doing the things in life that you want to do or from having the things in life that you deserve.
Mutual Investment Must Be Reciprocated:
Don’t fall into the belief that you’ll always invest more time, energy, and love in every relationship you have. You may find someone who wants a relationship with you to be successful just as much as you do and devotes all they can to achieve it. Mutual investment & spousal support is crucial in these situations.
GETTING AN UNCONTESTED DIVORCE
Separation can be tough for a couple as well as for the children. However, these days the requirements to complete the divorce process is more streamlined. You can now do it yourself, without an attorney, and get an online divorce over the internet. Moreover, while in the process of divorce, there are steps that you can take to help ease the stress and pressure that comes with separation. It all starts with a positive attitude & maturity.
- Take into account all the good times you had together. This will help reflect on the best parts of the relationship and why you owe each other a civil separation without negativity.
- Don’t talk negatively about your spouse to the kids. They are already experiencing difficulties from the changes and are most likely very frightened.
- Don’t argue in the presence of the children either. This only enhances their insecurity levels.
- Don’t be adamant about keeping certain unnecessary assets in the split just to be spiteful. This won’t help get through it any better or faster. It only needlessly prolongs the process.
- It’ll be difficult, but try to be objective and less emotional by making the best, most rational decisions possible.
- Establish a parenting plan. This can make life easier in regards to child-custody and ensure that all of the children’s needs are accounted for.
What is generally clear is that the worst approach to take during this period is to blame one another, as the harboring of resentment and anger is never good. A no-fault approach is important for the emotional health of all parties involved, especially the children.
All in all, the fact remains, a bad marriage will leave you unfulfilled and unhappy. Splitting up might be a shock to the system at first, but don’t be afraid to apply for a divorce. If you can take an amicable approach to the process, you can have a quick and easy online divorce. It’s time to look forward and open up a new chapter in your life.
source http://dominiclevent.com/blog/why-divorce-is-the-best-option-instead-of-staying-in-a-failing-marriage/
Coping With Divorce: When Your Kids are With Your Ex and You’re Home Alone
If someone asked me what the hardest part of divorce was at the beginning, right after my ex moved out, I would say it was the nights my kids were with their dad. I would go to bed and wake up in an eerily quiet house and I hated it so much. Coping with divorce in this regard isn’t easy and it takes time.
I have a friend who is experiencing a new separation and is having a hard time coping with divorce. She called me crying the other day because her two little girls were at their dad’s house from Friday night through Monday morning.
“I have never been without them for this long,” she cried. “It hurts so much.”
I felt terrible for her and I was able to related 100%.
When I first got separated and my kids went to their dad’s, I started doing a couple of things. First, I started obsessively cleaning my house, and I’m talking to the extent of scrubbing the floors on my knees. That stopped after a few weeks.
I also began drinking wine a lot, even when I was home alone. I would drink a couple glasses and then call my girlfriends and cry. It was awful, and I would tell anyone who is newly separated to be aware of how much you drink. Newly separated people are susceptible to addictions (including alcohol) because they are trying to numb pain, anxiety and fear. Anyhow, it took a few months, but the drinking stopped, too.
As time went on, coping with divorce got easier. I started getting used to the kids not being at my house on certain nights. Actually, I don’t think you ever really “get used to it,” but I started to be able to cope. Here are 6 pieces of advice for dealing with your kids sleeping at your ex’s house:
1. Don’t think too much and stop the guilt
It’s easy for a newly separated person to start hating him or herself. “I chose to get divorced and now I have to be without my kids. God is punishing me. I’m a horrible person. Who doesn’t sleep in the same house with their young children every night?” Those are some thoughts that were going through my head when I was recently separated, and I now see how ridiculous they are.
You aren’t being punished! You did what was best for everyone by splitting up. And, if the divorce wasn’t your decision, you had no choice. Ask yourself this question. Would the kids be better off living in a household with two unhappy people whose marriage wasn’t working, where there is no love, only fighting and anger and deceit and resentment? Every case is unique, but I have to believe in most cases, the kids are better off in 2 loving homes than in one unhappy one.
2. Learn to enjoy the time alone.
When your kids were babies, how many times did you wish you could run away and do something for yourself? Now you can! Do a yoga class, work on doing your job better, see friends, go to a movie, read good books, take a bath. Life is too short to spend ANY time sitting around being miserable. We are put on this earth to enjoy ourselves. Please don’t waste precious time crying about something you have no control over.
3. Don’t feel guilty about enjoying the time alone.
That’s just unproductive. And I bet if you asked your kids, they would want you to enjoy your time. Plus, when they come back, you will be refreshed and excited to see the kids and you’ll have this twinkle of happiness and they will see it.
4. Talk to your kids.
For years when my kids were little, they would ask, “Mom, what are you going to do while we’re at dad’s?” as if they are worried about leaving me home alone. I would answer them by rattling off a million things I had to do, or maybe friends I was seeing, which I think made them feel very relieved and happy. The burden isn’t on the kids. The worst thing you can do is show that unhappy face that lets your kids know you are sad that they are leaving. It’s actually selfish to do that, in my opinion.
5. Be flexible with your ex about schedule changes.
Let’s say your ex has to go out of town and can’t have your kids on his scheduled night. What do you do? Say, “tough. Get a sitter?” No! Say, “No problem, I will have them that night.” Why? Because then, he or she will do the same for you when you need to make changes. And, if he or she doesn’t reciprocate, who cares? What have you lost by taking the high road? Nothing. You’ve gained good karma and you did what was best for your kids. Trust me, helping each other out is so good for coping with divorce, and your relationship with your ex. More importantly, it’s good for your kids.
6. Enjoy the time you have when your kids are home.
Think about parents who have long work hours, or people who travel a lot for their jobs. They are really in the same boat. You might have less time with your kids now, but you can make the time you have really fun, and enjoyable. So don’t focus on the times you are home alone, focus on what you are going to do when your kids are with you.
It doesn’t matter if it’s a day in the city at 2 museums, stores and out for dinner, or if it’s sitting in front of the fireplace watching iCarly. Looking at their little faces, scratching their backs, listening to their problems and enjoying every moment is what counts.
Like this article? Check out, “20 Things I Wish I could have told my newly separated self.”
The post Coping With Divorce: When Your Kids are With Your Ex and You’re Home Alone appeared first on Divorce Blog | Divorce Support Blogs.
source http://dominiclevent.com/blog/coping-with-divorce-when-your-kids-are-with-your-ex-and-youre-home-alone/
Divorce During a Pandemic: Why is it Happening?
One phenomenon of the pandemic, even months into it, is the increase in relationship issues. Despite the mantra of trying to solve COVID-19 together, many couples are anything but together as they argue and scramble for the divorce papers.
Why is this happening, and how can we prevent it? Divorce is never easy, yet many people are still taking the plunge. Let’s look at some reasons why COVID-19 is increasing the divorce rate.
People Are Together More, And That’s Not Always Good
There are many couples who are only together a few hours a day, especially if they work during different shifts. Every bit of time they enjoy together is precious. When COVID-19 struck, many stable jobs are nowhere to be found, and some jobs were sent home. Because of this, more couples were together.
You may think that this is a good thing, but some couples are discovering that they only like each other in small doses, and absence indeed makes the heart grow fonder. When couples are together longer, it’s easier for them to get on each other’s nerves or find arguments if they are not used to the new dynamic. Because of this, it’s much easier to have arguments that will eventually lead to divorce.
Financial Issues
One of the biggest reasons that couples get divorced is financial woes. For example, if one person in the relationship loses their job, the fallout of that can lead people to get a divorce. When times are tough, one person’s spending habits may be an issue as well. COVID-19 has accelerated many couples’ financial woes, and even though divorce is expensive, there are some out there who believe that it’s better in the long run to get a divorce.
Disagreements About Parenting
If a couple has children, there will always be some disagreements about parenting. However, with COVID-19, the disagreements can intensify, especially when everyone is under one roof. For instance, one parent may disagree about the concept of learning from home. This can lead to more arguing, and thus more chances of divorce.
Disagreements About the Pandemic Itself
COVID-19 has brought a new divide in an already divided world. Some people believe that they shouldn’t have to wear a mask out in public, and others believe that COVID-19 is not as deadly as it’s portrayed. With what we know about it, we know this is not the case, but if your partner doesn’t believe this, it can lead to some fighting and a divorce may happen by the other person for the safety of them and the rest of the family.
Can’t Get Outside as Much
Many couples are outdoorsy, meaning that they can’t live without going to the movies or going on a vacation. COVID-19 has caused many couples to be cooped up, and this can lead to more fighting as a result.
Less Access to Marriage Counseling
If someone is questioning a divorce, there is still hope. Many couples will look to marriage counseling in order to repair their relationship when it’s on the rocks. A counselor is able, in some cases, to turn a marriage that is falling apart into a thriving relationship again. However, in the pandemic, many couples may be afraid to seek a counselor or one isn’t available, instead opting to fix their issues themselves. The problem is that some issues are better left to a third party who is an expert in relationships.
Mental Illness
The pandemic has made people’s depression, anxiety, and other mental health problems intensify. While marriage promises to be there in sickness and in health, some people cannot handle depression or anxiety, causing them to end up divorcing. And combined with people’s inability to see a therapist, it can make the process worse.
There is Hope
With all that said, there is hope. Because of the pandemic, online therapy has been increasing, causing many couples to look to getting counseling from the comfort of their own home. Marriage counseling online can be just as effective when one is questioning a divorce, and it may be worth it if you feel like there’s no chance of fixing the marriage yourself without it. For more information, click the link below:
https://www.regain.us/advice/divorce/
Other Ways to Keep Cool During a Pandemic
- Besides seeking therapy, there are a few other ways for everyone to keep their cool during a pandemic. Let’s look at some of them.
- Social distance not just outside, but inside. What we mean is that if one person wants some space, give it to them.
- Try to find fun activities to do indoors and outdoors that stay away from the general public.
Stay healthy. Eat right, workout, and get plenty of sleep. This can keep your head cooler.
stock photo ID: 1797003211
source http://dominiclevent.com/blog/divorce-during-a-pandemic-why-is-it-happening/
Roundtable: How corporates can prepare for the wave of litigation to come
Following an influx of coronavirus-related claims and virtual trials, as well as reinvigorated litigation funders, there is no doubt that Covid-19 is driving a new approach to dispute resolution.
This emerging trend was put forward by Stewarts during a recent roundtable, with insight provided by three of the firm’s partners alongside general counsel from a whole host of companies.
The debate, which formed part of The Lawyer’s virtual general strategy summit, revolved around three core areas, including risk appetite, the mechanics of litigation and the rise of third-party funding.
Stewarts’ partner Sean Upson kicked off the conversation by addressing how Covid-19 can impact client strategy when it comes to litigation. Most recently, Upson was involved in the mammoth Tesco shareholder dispute that was set to go trial before settling.
One observation put forward by Upson was that there has been a “drastic fall in litigation” of late, with corporates putting decision-making on hold. By referencing data from The Lawyer’s Litigation Tracker, he said it was clear to see in August that the High Court experienced a significant drop-off in the number of claims being filed.
He put this down to “organisations focusing on the acute urgent issues coming out of Covid”, adding that this time lag is comparable to the financial crisis of 2008 when claims arose in waves based on urgency.
“There is a lot more consideration about whether and when to pursue disputes and if can they can be put off,” said Upson.
The tightening of the purse strings also plays a part, with Upson stressing that there is now a “lot more budget planning that existed ever before.”
However, this does not mean clients are rejecting the prospect of litigation altogether, with Stewarts already boasting experience of clients seeking claims that can bring cash back into the business.
As one delegate put it, it is all about “making litigation a profit centre for the company”, particularly when eyeing cartel or securities-related opportunities.
In whatever form the claims emerge, they will likely be entering a new landscape of remote hearings. Notably, Stewarts was involved in the first virtual trial to be heard in the Commercial Court over lockdown, giving the firm’s partners direct experience of the pros and cons of remote proceedings.
“Virtual trials are hard to set up but once you have done so it comes with great advantages,” he said. “The time demands on organisations are very much less.” An example being that GCs can dial in online rather than jumping on a flight to the High Court.
Upson also flagged that “trials are now getting less publicity than ever before” due to court closures, which may be a bonus for clients looking to keep out of the headlines.
One separate topic that sparked inevitable debate was the growth of litigation funding, which since its inception has largely been perceived as a claimant-led tool.
Stewarts revealed it has so far enjoyed a mixed reception when discussing third-party funding with corporate clients, although this has not prevented it from acting in 125 significant disputes on an alternative funding basis.
One GC from a FTSE 250 company admitted it has yet to be convinced by litigation funding: “We’ve looked at it from time to time but you have to share the pie at the end of the day. Unless you are cash poor and you want to take it off your balance sheet, I don’t see the real merit in going down the funding path.”
He added that the more pressing issue for his company is going up against large classes of claimants taking action with the help of funding: “You’re against a formidable force because they’re not paying for their costs at all.”
Stewarts’ partner Stuart Dench echoed this sentiment: “It’s the legal mechanisms that are developing to enable those cases to be brought combined with the availability of capital and insurance. That will mean cases are seeing the light of day that might not have done 10 years ago.”
Elsewhere, another delegate flagged a separate issue relating to a general increase in workload when collaborating with an external funder: “The zero cost in the sense of having to write a cheque is very attractive but it depends on the case.
“One of the things that makes funding slightly less attractive is not the [lack of] control, but the admin burden that comes with having a funded case. There’s a lot of admin in terms of reporting and cooperation. Companies have got to look at not only the cost of writing a cheque but also the cost of reputational, PR management and admin.”
Broadly, funding is just one additional tool in-house lawyers must get to grips with as the litigation market evolves. With a wave of cases to come amid a backdrop of hungry funders and virtual hearings, a new approach to dispute resolution is key.
source http://dominiclevent.com/blog/roundtable-how-corporates-can-prepare-for-the-wave-of-litigation-to-come/
Child protection at heart of courts review
The Ministry of Justice has launched a review which will consider how the current approach to decisions on parental access made in the family courts is impacting child safety, in the next step forward for government’s wider plans to reform family courts and bring in greater protections for domestic abuse victims.
This follows a package of reforms earlier in the year to overhaul how family courts deal with domestic abuse cases – providing extra protections in courtrooms for victims, stronger powers to block abusers repeatedly dragging victims back to court and a new investigative court process to reduce conflict; see also the Safety from Domestic Abuse and Special Measures in Remote and Hybrid Hearings report published by the President of the Family Division.
The review builds on this action and will assess whether the right balance is being struck in private law cases between the risk of harm to a child and their right to have a relationship with both parents.
Currently, the presumption of ‘parental involvement’ which the courts are required to follow in their judgments encourages a child’s relationship with both parents, unless the involvement would put the child at risk of harm.
A recent review into harm in the family courts system found this presumption ‘detracted from the focus on a child’s welfare and safety – causing harm to children in some cases’. It recommended further analysis of how the courts were applying this presumption of parental involvement so that the impact could be properly assessed before determining whether a change in legislation or other reforms are needed.
The review will be guided by an Advisory Group, made up of diverse representatives who will be able to draw upon their expertise of working across the family justice system with victims, children and charities.
Justice Minister Alex Chalk said:
“We are determined to strike the right balance between making sure children are safe while ensuring they have the best possible family life. This is a complex area and any action we take following this review must be rooted in solid evidence. That is why it’s so important we take the time to look at this thoroughly.”
The Advisory Group to the review includes representatives from across the family justice system. The members are:
- Rachel Thomas, Welsh Children’s Commissioner’s Office
- Nicole Jacobs, the Domestic Abuse Commissioner
- Peter Jackson LJ
- HHJ Michelle Corbett
- Jacky Tiotto, CEO Cafcass
- Matthew Pinnell, Cafcass Cymru
- Tammy Knox, Resolution
- Michael Lewkowicz, Families Need Fathers.
The Review will focus both on the courts’ application of the presumption, as well as on the impact on children’s welfare of the courts’ application of these provisions. In particular, the Review will examine how courts are applying sections 1(2A), (2B) and (6) of the Children Act 1989, which together require courts to presume, in child arrangements and certain other private law children proceedings, that involvement of a parent in the child’s life will further the child’s welfare, unless there is evidence to suggest that involvement of that parent would put the child at risk of suffering harm, and to define involvement as ‘involvement of some kind, either direct or indirect, but not any particular division of a child’s time’; and the impacts on children’s welfare of the courts’ application of these provisions.
The review is expected to report back next year and forms part of the government’s long-term plan, announced in June, to better protect victims in the family courts.
13/11/20
source http://dominiclevent.com/blog/child-protection-at-heart-of-courts-review/
Covid-19 and the practical implications on civil litigation: where are we now and what can we expect…
In this article, Angela Milner (Senior Associate, Knowledge Development Lawyer) looks back at predictions made in April regarding the impact of Covid-19 on civil litigation. Angela assesses which of those predictions have materialised and discusses what we can expect to see in a post-Covid era.
A. What we thought would happen
In April we published an article discussing the likely impact the Coronavirus pandemic (and the restrictions imposed to deal with it) would have on civil litigation. We speculated that there would, among other things, be an uptick in applications for extensions of time and adjournments, but that the courts would most likely press on with delivering justice where possible. We discussed the likely increase in alternative dispute resolution (“ADR”), telephone hearings and fully remote trials.
B. What has actually happened? And what guidance has the court given?
The last seven months have confirmed the accuracy of these predictions.
1.Remote hearings/trials
Cases such as the National Bank of Kazakstan & Another v The Bank of New York Mellon & Ors (in which Stewarts acted for the claimants) illustrate the willingness of the court to conduct trials entirely virtually (even in circumstances where some of the parties object). You can read more about Stewarts’ experience of acting in the first fully remote trial in the Commercial Court here. To listen to a podcast from the Stewarts lawyers involved in the case, please click here.
Detailed guidance was given on the issue of remote hearings in the case of Municipo de Mariana & Others v BHP Group PL [2020] EWHC 928 (TCC), where the court noted the following:
- regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances;
- many disputes can be resolved fairly by way of remote hearing and courts must be prepared to adopt this format in circumstances where such a move would have been inconceivable only a short time ago;
- there should be a rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved; and
- inevitably, the question of whether there can be a fair resolution by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether, and if so to what extent, live evidence and cross-examination will be necessary is likely to be important in many cases.
There will, on occasion, be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote hearing. However, the implication in the case – and the approach taken by the court to date – suggests that this will be relatively rare.
2. Extensions of time
With regards to extensions of time, case law since April has made it clear that, as predicted, the court’s preference has been to press ahead with original deadlines if at all possible. In Heineken Supply Chain BV v Anheuser-Busch Inbev SA [2020] EWHC 892 (Pat), the court rejected the claimant’s request for a significant time extension for the filing of reply evidence, together with its request to push back the trial date until the following month. This was despite the fact that a senior member of the claimant’s legal team had fallen ill with Covid-19 and been unable to work on the reply evidence in question. In weighing up how to proceed, the court referred to recent cases that have proceeded remotely (and on time), as well as to guidance from the court.
It noted that Practice Direction 51ZA (which deals with the extension of time limits) requires the court to “take into account the impact of the Covid-19 pandemic when considering applications for extensions of time” (para 13). It also noted, however, that this should be approached against the background of “ensuring that attempts are made to keep to the directions timetable where it is realistically possible to do so”(para 13). Although the court granted a small extension for the filing of reply evidence, this extension was “modest” (para 23). The original trial window was also maintained. The court made it clear that “the wheels of justice should keep turning at their pre-crisis rate” (para 28), noting that lawyers may need to “push a little harder” (para 28) to ensure that cases remain on track.
This sentiment has been echoed in subsequent case law. In Municipo de Mariana & Others v BHP Group PL [2020] EWHC 928 (TCC), the court made it clear that requests for extension of time should be considered against the following principles:
- the aim should be to keep existing deadlines. Where that is not realistically possible, the minimum extension of time should be granted;
- the court can expect legal professionals to make appropriate use of modern technology;
- while recognising the real difficulties caused by the pandemic (and by the restrictions imposed to meet it), the court can expect legal professionals to seek to rise to that challenge. Lawyers can be expected to go “the extra mile” (para 32) and to go further than they otherwise might have done;
- the approach that is required of lawyers can also be expected from expert professional witnesses;
- the court should be willing to accept evidence and other material that is rather less polished and focused than would otherwise be required, if that is necessary to achieve the timely production of the material;
- however, the court must also take into account the realities of the situation. Care must be taken to avoid requiring compliance with deadlines which are not achievable even with the proper effort;
- the court must be conscious that it is likely to take longer and require more work to achieve a particular result (such as the production of evidence) by remote working than would be possible by more traditional methods;
- courts should bear in mind that hearings are being conducted from a number of different locations with varying amounts of space and quality of internet connection, that any IT support is being provided remotely, that individuals may be caring for sick family members/children, or assisting vulnerable relatives; and
- an extension of time which requires the loss of a trial date has much more significance (and will be granted much less readily) than an extension of time which does not have that effect. Before vacating a trial date, the court must be confident that there is no alternative that is compatible with dealing fairly with the case.
Conclusion on remote hearings and extensions of time
The courts, parties and lawyers are being expected to adapt at high speed to the challenges posed by the pandemic and the restrictions in place because of it. Given the protracted nature of the pandemic, it is clear that many more hearings and trials will take place remotely over the coming months. It is equally clear that the court will be slow to grant extensions of time purely as a result of the pandemic and/or remote format. The expiry of Practice Direction 51ZA (which allowed parties to agree extensions of time of 56 days without permission from the court) on 30 October 2020 underscores this point further.
When faced with a choice between (i) seeing justice done by utilising technology and holding virtual hearings or trials, versus (ii) delaying justice altogether, the court will do everything in its power to opt for the former.
3. ADR
The predictions we made in relation to ADR have also materialised. According to the Commercial Court Users Group, in the year to date “settlements have been high. Normally there is a 60-65% settlement rate. In the year to date it is closer to 75%.” [Minutes of the Commercial Court Users Group dated 15 June 2020, paragraph 3]
Interestingly, the increased desire to settle disputes appears to have started in January 2020, before the Covid-19 restrictions came into force in the UK. No doubt this reflects the international nature of many businesses, who have been impacted by Covid-19 related uncertainty globally. [Minutes of the Commercial Court Users Group dated 15 June 2020, paragraph 3]
C. What next?
The last seven months have involved a period of extremely rapid change for the legal profession. It is difficult to think of another point in history when courts – and lawyers – have been expected to adapt at such a fast pace. One interesting question on the minds of many in the profession is what will happen in the longer term, i.e. when the pandemic ceases to be of relevance to the justice system. What, if anything, of the status quo will be preserved? Will we revert to conducting all hearings and trials in person?
It seems unlikely. As Sir Geoffrey Vos, the Chancellor of the High Court, said in a recent speech to the Chancery Bar Association, there are some who believe that remote hearings and trials are a “form of second-class justice”. At the other end of the spectrum, others extol the virtues of remote hearings without even the most cursory consideration of the potential disadvantages. However, it seems reasonably clear that most in the legal profession lie somewhere in-between. That is, they can see the merits of retaining remote hearings in some form, but are not yet sure what the optimum balance would look like.
Many have reported concerns about Case Management Conferences (“CMCs”) proceeding remotely. They believe that holding these remotely impedes the ability of the parties and the judge to have free-flowing discussions, thereby resulting in less effective case management.
In contrast, there appears to be widespread consensus that substantial interlocutory applications work very well remotely, in large part because these tend to be highly structured in nature (i.e. a party makes an application, the other responds and there is a right of reply). They do not generally require free-flowing discussion in the same way as CMCs. It may be that in a post-Covid era the default position is that such hearings take place remotely unless there are “compelling reasons” for them to take place face-to-face (a view endorsed by Sir Geoffrey Vos). [Comments in speech made by Sir Geoffrey Vos entitled “The new normal in the Business and Property Courts post Covid-19” for the Chancery Bar Association on 3 June 2020, paragraph 37.]
The position as regards remote trials is perhaps more challenging. Many recognise the considerable benefits of remote trials (including reduced travel expenses and more client participants being able to attend trial than would have been possible had they been required to attend court physically). However, concerns remain about the ease with which judges can read witnesses and take a view on the veracity of their evidence (particularly where there are pre-existing concerns about the honesty of the witness). Further, many barristers have expressed reservations about the different advocacy skills required in a remote cross-examination.
Interestingly, a discussion with lawyers attending the 125th Anniversary of the Commercial Court seminar in September this year revealed that the single biggest reservation of many in the profession regarding a move to fully remote trials is the perception that this would have a detrimental impact on junior members of the legal profession. Many judges, counsel and solicitors regard the ability to sit in a physical courtroom and experience first-hand the evidence of the witness, the art of cross-examination and the trial as invaluable learning opportunities for juniors. Many useful lessons take place during discussions to and from court, or when speaking with clients during court breaks.
However, it seems unlikely that these reservations alone would be sufficient to deter the use of remote trials after we have emerged from the pandemic.
It may be that what we see in the future is a more nuanced approach, with some stages of trial (or more minor witnesses) being heard remotely, while other aspects of trial/key witnesses being heard in person. Exactly what the new normal will entail, and what will be preserved from this tumultuous time, remains to be seen. However, it is difficult to disagree with Sir Geoffrey Vos, who notes that “the new normal, to which we should aspire, must provide a far more flexible dispute resolution process than has historically been the case. [Comments in speech entitled “The new normal in the Business and Property Courts post Covid-19” for the Chancery Bar Association on 3 June 2020, paragraph 25.]
source http://dominiclevent.com/blog/covid-19-and-the-practical-implications-on-civil-litigation-where-are-we-now-and-what-can-we-expect/
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