Financial remedies cases facing valuation challenges

Remote final hearings in financial remedies cases are facing challenges of financial market volatility and uncertainty around property, business and investment values, family solicitors have warned.

Samantha Newton and Megan Prideaux, both family solicitors at Ashfords, said these challenges pose wider questions as to timing of hearings and how they are to be conducted.

“Where an expert has been instructed to provide specific pension advice or to value a business interest or property assets, the reliability of these expert valuations during this unpredictable time is causing concern,” they warned.

They also expressed concern that if hearings were to go ahead, relying on this information could result in an unfair outcome.

“In cases where asset values are now too unpredictable to enable a fair outcome”, they added, “final hearings or indeed settlements are needing to be put on hold until certainty is restored, posing wider questions as to timing of hearings, as well as how they are to be conducted.”

Though some of the more straightforward finance cases are still able to proceed, Newton and Prideaux warned that with family court proceedings being stressful at the best of times, the added uncertainty of whether hearings will go ahead is causing real concern for clients.

Their concerns follow the recent announcement of a rapid two-week consultation on remote family court hearings.

“It  remains  the  starting  point”, the Lord Chief Justice, the Master  of  the  Rolls  and  President  of  the  Family  Division reminded judges last week, “that, for  example,  a  remote  hearing  is  unlikely  to  be appropriate  for  most  cases  involving  the  welfare of  children  before  the  family court and  it  is  against  that  background  that  any  decision  to  conduct  a  remote  hearing  must be  taken.”

Prideaux and Newton also said concerns have been raised in respect of private children hearings where children’s welfare decisions need to be made by the court; as well as other cases such as those involving domestic violence.

"This has led to some of our hearings being adjourned, even where both parties agreed to them going ahead by video”, they said.

“Cases involving domestic violence, children, vulnerable parties and litigants in person provide further challenges to remote hearing use.”

They warned that it was imperative that the safeguards put in place during a physical hearing remain in place in a remote process.

They also raised concerns as to whether live evidence, which is given under strict and controlled conditions in the courts, can be replicated.

“Virtual hearings are incredibly tiring”, they commented, “and it remains to be seen how clients will be able to cope, particularly in highly emotional cases.

“Video hearings and meetings are far more effective than telephone hearings which are not in our view suitable in long cases, or cases involving oral evidence.”

They also expressed concerned as to how input from third parties not involved in a case can be effectively policed.

However, they acknowledged that “the judiciary and practitioners are working hard to establish how best to handle these delicate cases in these uncertain times.

“We hope that the consultation enables sharing of ideas and issues to create a clear landscape over the coming months."

The consultation closes on 28 April.