Private FDR – The Coronavirus Antidote:
What do I do when the courts are closed?
In many countries, courts have been closed or at least there are instances of delays in hearings, and long adjournments. There is much discussion about the right of access to a court for the purposes of Article 6.
In the USA and Europe most of the courts have already closed. We don’t know for how long and when the court system will operate normally again, but we do know that this delay in access to justice can have a detrimental affect on the parties’ financial resources.
What is the Right of Access to a court?
This was defined in Golder v. the United Kingdom. In this case the Court held that the right of access to a court was an inherent aspect of the safeguards enshrined in Article 6 (Zubac v. Croatia). The right to a fair trial, as guaranteed by Article 6 § 1, requires that litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic; Naït-Liman v. Switzerland ). As a consequence, everyone has the right to have any claim relating to his “civil rights and obligations” brought before a court or tribunal. In this way, Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect.
Who can rely on Article 6?
Article 6 § 1 may be relied upon by anyone who considers that an interference with the exercise of one of his or her civil rights is unlawful and complains that he or she has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1. Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or to the scope of the asserted civil right, Article 6 § 1 entitles the individual concerned “to have this question of domestic law determined by a tribunal” (see Z and Others v. the United Kingdom or Markovic and Others v. Italy). The refusal of a court to examine allegations by individuals concerning the compatibility of a particular procedure with the fundamental procedural safeguards of a fair trial restricts their access to a court (see Al-Dulimi and Montana Management Inc. v. Switzerland).
What effect does it have on Family Law cases if the Court would close for a longer period?
Under German Civil procedure rules under 245 ZPO in connection with 206 BGB the right of a fair trial would be only breached if the Courts will be closed and no other Judge would be available and the courts are closed for a unforeseeable period (see also OLG Thüringen decision 22.04.2005 – 1 WF 455/05).
In light of the impact of the coronavirus (Covid-19) Mr Justice Mostyn issued guidance this week about it. We posted the details here.
One of the recommendations was to use private Financial Dispute Resolution Hearings (Private FDR). Mostyn J recommended that in Financial Remedy proceedings that “parties should be encouraged to arrange private financial dispute resolution (FDR) appointments, to take place remotely where possible”.
What is a Private FDR?
A Private FDR is a simple concept. The parties pay for a financial remedy specialist to act as a Private FDR judge. That person may be a solicitor, barrister or retired Judge. No additional qualification is required. The Private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers’ chambers, and a full day is normally set aside to maximise the prospects of settlement. It takes the place of the in-court FDR.
When can I apply for a Private FDR?
Usually, where the parties have agreed to a Private FDR the order made at the first appointment will record such an agreement in the recital and will provide for a short directions hearing shortly after the date of the Private FDR. The directions hearing can be vacated if agreed minutes are submitted following a settlement at the FDR. If there is no settlement, then directions for the final hearing can be given. An alternative is for the case to be adjourned generally whilst a Private FDR takes place.
What are the benefits of a Private FDR?
- A Private FDR is both cost effective and will avoid lengthy delays waiting for the court to have time available for your final hearing.
- A Private FDR helps focus minds, and narrows the issues in a more cost-effective way. The Private FDR judge has more time to consider your case and you are not one of 15 or so other cases often crammed into the FDR Judge’s list on any given day at court.
- You benefit from experienced retired judges who are able to balance the positions put forward by both legal teams.
- There is only a short waiting time for your case.
- In situations where the court has limited availability or has even had to close down, the parties do not want to delay the case even further. Delay can have a negative effect on the matrimonial assets and the individual outcomes.
If you want to know the cost for a Private FDR and if your case would benefit from a Private FDR, please do not hesitate to contact James, Frank, Evelyn or Paul. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 01904 217225 or email us: [email protected].