Bishop & Sewell

There are a multitude of articles from family lawyers extolling the virtues of the various types of Alternative Dispute Resolution (ADR): mediation, collaborative law and arbitration. While ADR has its place in the right type of case, those articles shy away from spelling out why you do not want to go to court unless you can avoid it.

Court is an expensive option

First, going to court is very expensive and any client who tells you “I want my day in court” or “it’s a matter of principle” tends to change their mind when you tell them how much it is going to cost.

Any case that goes all the way to a final hearing is likely to have involved at least one directions hearing and a dispute resolution hearing before the trial. Each hearing has to be fully prepared for, usually involves briefing a barrister and will involve time at court. If you have a one hour interim application listed for hearing at 10.00 a.m. you will find that you are one of three, four, five or even six cases listed at the same time and you will be lucky to be out of the court building much before lunchtime.

The Court system

The courts are underfunded, understaffed and overworked. Litigants in person have tied up the court system since the removal of Legal Aid for nearly all types of family work. This means that you are likely to have to wait a long time for any hearing date except in the most urgent of cases. On a financial claim on divorce you are looking at a process that can take 12 to 24 months from issuing an application to a final hearing.

You should not have an expectation that you will necessarily appear before a judge who knows the issues in your case, or sometimes even the law! The judge may only have had limited time to read into your case. Family law is specialist and the judge hearing your financial claim on your divorce may have specialised in childcare work before they became a judge or vice versa. Particularly outside of central London, your case could be heard by someone who did not practice family law at all before being made a judge. I have sat in a court on too many occasions when all of the solicitors and barristers in court knew far more about the law than the presiding judge.

Uncomplicated children cases are likely to be allocated to a lay, ie. non-lawyer, magistrates who are reliant on the court legal adviser to provide guidance. Appearing before magistrates can be a real lottery.

Uncertain outcomes

In all litigation, there is no certainty of outcome. Even if you have the strongest and best prepared of cases and your case is being heard by a highly experienced specialist family judge who has been able to allocate sufficient time to your case, there is no guarantee that the judge is going to give you the outcome you want. Settling a case will mean compromise, but it is an outcome that you will have agreed to.

Getting a judgment does not mean an end to matters because there is always the possibility of appeal which means spending more on legal fees and longer in the court process. Children matters may also be brought back to court many times as children get older and circumstances change.

The threat of litigation

Of course, litigation sometimes cannot be avoided. Negotiations can grind to a halt, your spouse or partner may be maintaining an unreasonable position or you may have strong grounds to believe that they are hiding assets. In those situations an application will have to be issued and the court process then starts. Issuing an application does not mean having to go all the way to trial. Most cases settle during the course of the proceedings and the court process usually involves having a dispute resolution hearing before a judge who will give an informal view as to the appropriate outcome which aids a settlement.

Negotiating a settlement, whether in solicitor-led negotiations or using a form of ADR, is going to produce the best outcome in the majority of cases. Rushing to court is not necessarily going to be your best option.

If you need expert advice on divorce matters, or family relationship issues more widely, please contact Philip in our family team. Alternatively, you can email or call 020 7631 4141.

David Little

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