All bundled up


Great heed needs to be paid to the President of the Family Division's 27 July practice direction (PD) relating to court bundles. It came into effect on 2 October and relates across the country in all family courts to all hearings of whatever nature (other than the Family Proceedings Court).



The spectre of wasted costs orders haunts the unwary within the powers contained in paragraph 12 of the PD. This states categorically that failure to comply with any part of the PD may result in the judge removing the case from the list or putting it further back, and may also result in a wasted costs order in accordance with part 48.7 of the Civil Procedure Rules (CPR), or some other adverse costs order.



This PD replaces the President's Direction (Family Proceedings: Court Bundles) (2000). This PD should, where appropriate, be read in conjunction with the President's Direction (Human Rights Act 1998) 2000 2 FLR 429 and with Practice Direction (Care Cases: Judicial Continuity and Judicial Case Management) appended to the Public Law Protocol 2003 2 FLR 719. In particular, nothing in the new PD is to be read as removing or altering any obligation to comply with the requirements of the public law protocol.



The PD does not apply to:

Cases listed for one hour or less at a court referred to in paragraph 2.1(c) or 2.1(d) of the PD; or

The hearing of any urgent application if and to the extent that it is impossible to comply.



However, the designated family judge responsible for any court referred to in paragraph 2.1(c) or 2.1(d) of the PD may, after such consultation as is appropriate, adopt the view that the cases listed for less than one hour shall be subject to the new direction.



The party in position of the applicant at the hearing shall assume responsibility for preparing the bundle unless a litigant in person, whereupon the responsibility will rest with the respondent. The party preparing the bundle shall paginate it and, if possible, the contents of the bundle shall be agreed by all the parties.



Copies of all documents relevant to the hearing must be placed in chronological order from the front of the bundle, with a paginated index, divided into separate sections (each section being separately paginated) as follows: preliminary documents, applications and orders, statements and affidavits, care plans (where appropriate), experts' reports and other reports, and other documents, divided into further sections that may be appropriate.



Copies of contact visits should normally not now be included unless directed by a judge.



Preliminary documents should be at the front of the bundle, including a summary of the background of the hearing; a statement of the issue or issues to be determined; a position statement by each party, including the summary of the order or directions sought; a chronology; skeleton arguments, if appropriate, with copies of all authorities relied on; and a list of essential readings for that hearing.

Each preliminary document must state on the front page, immediately below the heading, the date when it was prepared and the hearing for which it was prepared. The summary of the background, statement of issues, chronology, position statements and any skeleton arguments must be cross-referenced to the relevant pages of the bundle. Where the parties disagree as to the content, the fact of their disagreement and their differing contentions must be set out at the appropriate places in the document. This will inevitably necessitate more work, as the parties' solicitors will need to agree their areas of disagreement.





If the litigators have managed steadily to climb all the ladders to get to this point, they must be aware that, by missing deadlines, they will slide down the snake that promises to plunge them into the misery of paragraph 12.



Not less than four working days before the hearing, the party preparing the bundle, whether the bundle has been agreed or not, must provide a paginated index to all other parties. The index to a case management conference to which the provisions of the public law protocol apply must be provided not less than five working days before the conference.



A paginated bundle must be delivered to counsel - if one is instructed - not less than three working days before the hearing. Bundles must be lodged not less than two working days before the hearing, or at such other time specified by the judge.



Preliminary documents must be lodged with the court no later than 11am on the day before the hearing and e-mailed to the judge's clerk when the hearing is before a High Court judge and the name of the judge is known.



The bundle must be lodged at the appropriate office. However, if it is lodged at a wrong place, the judge may treat it as not having been lodged at all or invoke the paragraph 12 sanctions.



Unless the judge has given some other directions to where the bundle in a particular case is to be lodged, for hearings in the Royal Courts of Justice (RCJ) it will be taken to the clerk of the rules. For hearings in the Principal Registry Family Division, bundles should be lodged at the third floor, First Avenue House, 42-49 High Holborn, London WC1. For hearings in any other court, the bundles must be lodged at such places that may be specified by the designated family judge or other judge at court and in the court of such designation at the court office of the court where the hearing is to take place. It must be clearly addressed to the appropriate office and must show the date and place of hearing on the outside of any packaging, as well as on the bundle itself.



There are additional requirements for cases being heard at First Avenue House or the RCJ. If bundles or preliminary documents are delivered personally, it is essential to ensure that a receipt is obtained from the clerk. If sent by post or DX, ensure that proof of posting or despatch is obtained. These must be taken to the court on the day of hearing and produced if requested. If the receipt cannot be produced, the judge may, yet again, either treat the bundles as not having been lodged, or invoke paragraph 12.



For hearings at the RCJ, if the bundles for preliminary documents are delivered late, they will not be accepted by the clerk to the rules and must be delivered, instead, to the clerk of the judge hearing the case if that is a judge of the High Court or, in cases where the hearing is before a circuit judge, deputy High Court judge, or recorder, directly to the messenger at the judge's entrance to the Queen's Buildings. Telephone notification must then be given to the personal assistant to the designated family judge that this step has been taken.



On learning before which judge the hearing is to take place, counsel's clerk will now have the additional task of telephoning - by no later than 3pm on the day before the hearing - that judge's clerk to ascertain whether or not the judge has received the bundles (including the preliminary documents). If the judge has not, counsel's clerk will have to organise prompt delivery by the applicant's solicitors.



This is going to place an additional burden on counsel's clerks and it is yet to be seen how, in practice, this part of the PD will be achieved. One wonders, in addition, whether or not the Legal Services Commission will baulk at the prospect of paying solicitors and barristers for the additional work this PD will inevitably engender.



Just when the practitioners thought it was safe to roll the dice again, they should read the closing paragraphs of the PD so far as they relate to removing and relodging bundles. Bundles that are not collected from the court within five working days will be destroyed. If a bundle is relodged for subsequent hearings, it must accord with the provisions of the new PD and shall be updated as appropriate and all superseded documents removed from the bundle.



In every case, the time estimate (which shall be inserted at the front of the bundle) will be prepared and agreed by all parties if possible. It must specify separately the estimated time required for judicial pre-reading, for hearing all evidence and submissions, and for preparing and delivering judgment. The estimate must be prepared on the basis that, before all evidence is given by the witnesses, they will have read all relevant file statements and reports.



Once the case has been listed, any change in time estimates should be notified immediately by telephone (and immediately confirmed in writing) to:

The clerk of the rules in hearings in the RCJ;

To the list officer in the case of hearings in the Principal Registry of the Family Division at First Avenue House; and

To the relevant listing officer in the case of hearings elsewhere.



The court must be notified immediately by telephone or in writing if the hearing is no longer to take place for whatever reason. The letter, wherever possible, should be a joint letter signed by all parties. It must also include:

A short background summary of the case;

The written consent of each party who consents and, where a party does not consent, details of the steps that have been taken to obtain that party's consent and, where known, an explanation why that consent has not been given;

A draft of the order being sought; and

Enough information to enable the court to decide whether or not the case should be removed from the list and whether or not to make the proposed order.



Inevitably, the new PD is going to place an additional burden on lawyers and counsel's clerks. So how did it come about? The committee formed to review the procedure consisted of representatives from groups such as Resolution, the Family Law Bar Association, barristers' clerks, the RCJ Users Group, and the Children and Family Court Advisory and Support Service, to name but a few. Its work was heavily supported by the President of the Family Division, who attended a number of the meetings.



The overwhelming view from senior members of the judiciary was that a great deal of court time, and consequently costs, has been wasted owing to the late filing and, on occasions, the absence of filing, of documents required by the court for the proper disposal of actions.



By Gill Rivers, Charles Russell, London