Oh you are all going to LOVE this.
You know those lever arch files you have got in your office, that you put the Court papers in? They are too big. You are not to use them. You are very naughty.
Sir James Munby, President of the Family Division
Re L (A child) 2015
http://www.bailii.org/ew/cases/EWFC/HCJ/2015/15.html
The case is notionally about the refusal of the Legal Aid Agency to pay for the costs of translating a Court bundle for the father, but it has been almost a week since the last Presidential tirade, so we were long overdue.
Size of lever arch files
15. PD27A para 5.1 requires the bundle to be contained in an “A4 size ring binder or lever arch file” (emphasis added). Too often this requirement is ignored and the bundle is contained in a foolscap binder or lever arch file. This will not do. This requirement must be complied with. This is not some mindless pedantry. There are reasons for the stipulation, each deriving from the fact that an A4 lever arch file, although it contains as many sheets of paper, is not as tall as a foolscap lever arch file. First, a standard size bankers box can accommodate 5 A4 lever arch files, but only 4 foolscap lever arch files. Second, many judges and courts have trolleys or shelves arranged to accommodate A4 lever arch files, the purpose being to maximise the number of shelves (and thus the number of files) that can be fitted in any given space.
Just to confirm to you, every lever arch file that you have in your office, on your shelves, in your stationery cupboard is TOO LARGE. If you take an A4 piece of paper and lay it on the front of the bundle, the paper should exactly fit. If it doesn’t (and it won’t) it is TOO LARGE and you must not use it.
You are thinking, no, my lever arch files are right, they are just the right size. They are the same size that we’ve all been using for 25 years. Suesspicious Minds is talking about people who are using some weird new fangled ones. I’m really not. I’m talking about the ones that you are using. They are too big. You must not use them.
Probably on pain of death.
You may wonder why Court trolleys and court cupboards and judicial cupboards have been built to the specifications of a size of lever arch file that literally nobody uses rather than, just throwing this out there – the size that literally everyone uses. I cannot resolve that mystery for you.
We then have a rant about witness bundles – you may recall before the President being outraged that people were sending witness bundles to the Court rather than physically carrying them there.
I have also referred to PD27A para 7.4 and drawn attention to what I said about it in Re W (Children) [2014] EWFC 22, para 13. PD27A para 7.4 could not be clearer but it is routinely ignored. It is bad enough when a second (witness) bundle is unnecessarily and improperly delivered to the court or the judge before the day of the hearing. It wastes the time of court staff and judges. It is even worse when – and I have had this experience myself more than once in recent weeks – the second bundle is not needed because there is no prospect of any oral evidence from witnesses; in such a case money – very often public money – is simply being wasted in the preparation of a wholly unnecessary copy bundle.
What is the solution? Well, it is this:-
This practice must stop and I have taken practical steps to stop it. From now on, counter-staff at court offices will be instructed to refuse to accept witness bundles, unless a judge has specifically directed that they are to be lodged, and to require whoever is trying to lodge them to take them away. If witness bundles are sent by post, or by DX or delivered by couriers who refuse to take them away, they will, unless a judge has specifically directed that they are to be lodged, be destroyed without any prior warning necessarily being given. They will not be delivered to the judge and will not be taken into the courtroom by court staff.
I’m not making this stuff up, this is actually in the judgment. This is not satire, it is real life.
I would lose any argument on Godwin’s Law if I tried to suggest that the Court would sacrificially burn bundles like some sort of totalitarian government burned books, but let’s go instead with the Americans in the 1970s who rebelled against disco by burning disco records.
Are we done on the raging against the dying of the light? Not quite.
the practice direction says 350 pages – and if you think that the President is about to say “the code is more what you’d call guidelines than rules” then it is like you’re talking gorgonzola when it’s clearly brie time baby.
- I make two final observations about PD27A, both of which bear on the crucial issue of the size of the bundle – something which is at the core of the difficulties in the present case. The first is that PD27A para 4.1 spells out the fundamental principle that:
“The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing (emphasis added).”
In other words, there is a double requirement to be satisfied before any document is included in the bundle: it must be relevant and it must be a document which will used, in the sense that it will either be read or referred to. This principle is reinforced by the list of documents which PD27A para 4.1 states “must not be included in the bundle unless specifically directed by the court”.
- The other observation is the desirability of documents being, to adopt the language of PD27A para 4.4, “as short and succinct as possible”. This is a topic I dealt with in both my second and my third View from the President’s Chambers: [2013] Fam Law 680, [2013] Fam Law 816. In relation to both local authority documents and expert reports, I made the point that they should be succinct, focused and analytical though also, of course, evidence-based. In relation to expert’s reports I said ([2013] Fam Law 816, 820):
“there is no reason why case management judges should not, if appropriate, specify the maximum length of an expert’s report. The courts have for some time been doing so in relation to witness statements and skeleton arguments. So, why not for expert’s reports? Many expert’s reports, I suspect, require no more than (say) 25 or perhaps 50 pages, if that. Here, as elsewhere, the case management judge must have regard to the overriding objective and must confine the expert to what is necessary.”
- As that makes clear, the approach is not confined to an expert’s report. There is, in my judgment, no reason why case management judges should not, if appropriate, specify the maximum length of a skeleton argument, a witness statement, a local authority’s assessment, an expert’s report or, indeed, any other document prepared for the proceedings which will be included in the bundle. I would encourage judges to do so. Too many documents are still too long, often far too long, not least having regard to the 350 page bundle limit. I recently tried a care case where a psychologist’s report ran to some 150 pages. In the present case the bundle includes no fewer than 131 pages of witness statements by the mother. Another problem is created by unnecessary repetition, for example where the second witness statement reproduces all or most of the first before proceeding to add the more recent material, or where much of the detail in a lengthy assessment is reproduced, sometimes almost word for word, by the assessor in a subsequent witness statement: see again, for a recent example, Re A (A Child) [2015] EWFC 11.
- This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough. From now on:i) Defaulters can have no complaint if they are exposed, and they should expect to be exposed, to public condemnation in judgments in which they are named.
ii) Defaulters may find themselves exposed to financial penalties of the kind referred to by Mostyn J in J v J.
iii) Defaulters may find themselves exposed to the sanction meted out by Holman J in Seagrove v Sullivan.
The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions, including but not limited to those I have already mentioned. If, despite this final wake-up call, matters do not improve I may be driven to consider setting up the special delinquents’ court suggested by Mostyn J.
- I make clear that PD27A has nothing to do with judicial amour-propre, nor is its purpose to make the lives of the judges easier. On the contrary, as I observed in Re X and Y, it is simply a reflection of the ever increasing burdens being imposed upon judges at all levels in the family justice system. I continued (paras 5-6):
“5 … The purpose of all this is to ensure that the judge can embark upon the necessary pre-reading in a structured and focused way, making the best and most efficient use of limited time, so that when the case is actually called on in court everyone can proceed immediately to the heart of the matter, without the need for any substantial opening and with everyone focusing upon the previously identified issues. The objective is to shorten the length of hearings and thereby to increase the ‘throughput’ of the family courts – with the ultimate objective of bringing down waiting times and reducing delay.
6 But these wholly desirable objects – wholly desirable in the public interest and in the interests of litigants generally – are imperilled whenever there is significant non-compliance with the Practice Direction …”
- The judges of the Family Division and the Family Court have had enough. The professions have been warned.
I mean, this doesn’t actually say that offenders will be put in stocks and pelted with rancid fruit, but it says “name and shame”, “making costs orders” “having a judge tell you go away, agree 350 pages only and don’t come in with any more” and “setting up a special Court to deal with people who break the practice directions”
If you are going before the President with a big bundle, in a big lever arch file, and you’ve already DXed the witness bundle to the Court, don’t wear your best suit is what I’m saying. Or go, but have your Dry Cleaner on speed-dial.
Back to the actual issue – in this case father was Slovenian and didn’t speak English. These were care proceedings, so he might lose his child. The Court bundle was 581 pages (naughty naughty). The costs of translation worked out to be £23,000 and the Legal Aid Agency said no. Including this gem
This application is refused as it is not considered the expenditure is necessary or justified. It is accepted that if the client cannot speak or read English he does need to understand the evidence. However, it is very unlikely indeed that he will actually to read such a large volume of documentation. Further, unless the client is a lawyer or has some experience of the work done by child professionals, I cannot see that a verbatim translation would be of any real benefit to him. If the client were an English speaker, would you consider it essential that he was provided with a copy of the Court bundle?
Erm, well yes, I would. And I’d suggest that article 6 does too
The applicant must have a real opportunity to present his or her case or challenge the case against them. This will require access to an opponent’s submissions, procedural equality and generally requires access to evidence relied on by the other party and an oral hearing.
Clearly £23,000 is a lot of money, particularly when the Judge felt that the bundle was over-inflated. So he trimmed it to essential documents
In my judgment it is “necessary” for K to be able to read in his own language those documents, or parts of documents, which will enable him to understand the central essence of the local authority’s case or which relate or refer specifically to him. The remaining documents need only to be summarised for him in his own language.
[listing them]
In short, it is necessary for K to see in translation, either in whole or in part, only 51 pages. The contrast with the 591 pages originally identified for translation, and even with the more modest total of 246 pages subsequently identified, is striking.
- Plainly it is necessary for K to understand the case as a whole and to be aware of the important substance – not the fine detail – of the various other witness statements, reports and assessments. As proposed by the LAA, this necessitates the preparation by K’s solicitor of a summary. That summary, if it confines itself, as in my judgment it should, to matters of substance rather than fine detail, need be no more than (say) 30 pages in all.
- The point is made that between now and the final hearing various other documents will be served. If the same approach is applied as that which I have set out above, and in my judgment it should be, I would expect that it will be necessary for K to see only a modest number of additional pages in translation. The remainder can be summarised at probably quite short length.
And ending with another telling off – sorry, a plea for restraint
- I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not. Proper compliance with PD27A and, in particular, strict adherence to the bundle page limit, is an essential tool in the struggle to control the costs of family litigation
I am off for a final hearing now, with lever arch files that are too large. Wish me luck as you wave me goodbye.
suesspiciousminds 
I’ve just had to re-check the PD, presuming that I had it wrong…..but no, it says:
6.3
The bundle (with the exception of the preliminary documents if and insofar as they are not then available) shall be lodged with the court not less than 2 working days before the hearing, or at such other time as may be specified by the court.
Which do we follow? Any ideas?!
I think that must mean the Court bundle. We can still DX or courier that – it is just that it now risks being destroyed by Court staff if the courier is not able to answer their questions about whether it might be a witness bundle. It is the witness bundle that you have to hand-deliver to Court.
Ooooooooooo hang on, I see. Post one bundle (to be lost by the Court) and then hand deliver another, which you must not copy until the day of the hearing, just in case everyone changes their minds. Much better.
I’m going to love preparing a witness bundle at Court when we get into the Sullivan exercise of counsel agreeing between themselves which 350 pages they want. [Given that nothing can go into the court bundle without the court’s permission, this seems more about case management. If that bundle grew to 581 pages, there must have been a hearing where the bundle was nearly 350 with more statements/reports being directed. Wasn’t that the time to start filleting it down?]
When they put you in the stocks MoJ will make a mess of outsourcing the provision of dead cats and rotten eggs. And it will have to be advertised in the OJ!
Oh we love it.
Thanks
Clare
In open court!
I ought to add I sent off a bundle today in the right size file ,quite by accident before I saw this post. So the outside of the bundle is correct even if the inside isn’t!
‘Cos there aren’t more pressing things to worry about.
Seriously, judges, get over yourselves
Guys, I hate to say this but you are coming across as spoiled brats. Ok, Inspectors of Taxes, retired or otherwise, do tend to be a bit vulgar when it comes to talking about money- we actually talk about it- but then we are used to dealing with sums with lots of 0s on the end.
We are only too familiar with parties who deliver documents late, running to thousands of pages, with the relevant information buried therein, in the hope that no-one will notice the vital bits, particularly since there’s little or no time to read it before the hearing.
But as someone once remarked, decades ago, judges are not judicial ferrets, and your recent fervent denunciation of the use of the Appeal Court as exceedingly expensive legal researchers doesn’t sit well with your complaints when the President tries to drag people kicking and squealing into the 21st century. The idea that Family Court Orders should actually be complied with may seem strange to you, but to those accustomed to other branches of the it’s downright bizarre that this doesn’t seem to strike you as strange.
I realise that your stationary cupboards may have to be purged of quills, and this is a blow, but I spent a working lifetime using A4 and I promise it doesn’t hurt. You may even get to like it in time; stamping your feet about it like terrible twos is not conducive to public confidence, even if it is hilarious…
I think all of us would be delighted at having electronic bundles and proper wi-fi. This is more about people at the top descending into massive levels of pedantry about things that don’t matter when they didn’t speak out about the things that do matter, such as legal aid cuts robbing people who needed it of their rights to representation. And that you risk losing proper, meaningful reforms in huge wodges of paperwork specifying how big your margins are to be.
But yes, sometimes I am childish.
(I think the President is right to complain about practitioners breaking the rules on bundle size, but I honestly have only seen that once since the Rules came in, and it was on a case with really complex medical evidence. I don’t think it is a routine case of lawyers ignoring that rule, more that a one size fits all rule isn’t always going to be workable)
I wasn’t being totally serious myself, but I think you are being a little unfair in suggesting that Munby isn’t speaking out about legal aid changes. Quite a few other Judges have as well; it’s not as if there’s judicial silence on the subject.
There are a number of Family Court Judges complaining about the bundles; I’ll have to dig out the references, just as there are a lot of Family Court Judges complaining about the routine way in which Local Authorities, in particular, though lawyers in general, ignore their Orders, causing vast wastage of Judicial time, and therefore money – I warned you that I talk about vulgar things like money- thus screwing the system.
I’m not exactly fond of bureaucratic nitpicking, and whilst I accept that inertia is a powerful factor in any organisation, the fact that you are all still using the wrong bloody files 15 years after the practise directive suggests that it’s not just inertia, it’s simply contempt for the people making the directives. Surely a bunch of competent people could manage to organise themselves just a teensy weensy bit faster than a decade and a half?
Admittedly, I used to work in a profession in which major changes to the law happened at least once a year, so I’m used to constant disruption and constant alterations to my practise. But I still don’t think it’s unreasonable to expect professional people to move slightly faster than terminally ill tortoises…
On the bundle size (which is a really really trivial issue but illustrative of the way that our senior judiciary are not the best administators) it is not that we’ve all been using the wrong lever arch files for 15 years, it is that everyone uses that size – it is a standard size, and that we have one Judge take against it and write a Practice Direction last year saying that we all need to change and offering no reason why Local Authorities should in a time where we are all debating scrapping meals on wheels to throw away perfectly good stationery that we’ve already paid for to replace it with a slightly different version. [David Burrows is very good on why this sort of thing is not reallly in their skillset and that they aren’t actually much cop at complying with the law on how such changes are to be made]
On the actual size of the contents of the bundle – there’s a genuine point there – but frankly stuff only goes into the bundle because the Judge orders it. We don’t just put stuff in willy-nilly. It goes in because a Judge has directed “I want the police records, or phone records or what have you” or “Mother must file a statement”.
The Practice Direction would result in utter chaos if people actually complied with it to the letter, because it is not a set of arrangements that actually works in the real world.
{The President has started making challenging judgments about legal aid, but it is all too late now. What needed to be said needed to be said before LASPO became law}
I think you miss the point a little Stevie. The heart of the complaint is that the court’s entirely justifiable wish to streamline and modernise procedures appears to at the expense of a)common sense and b)justice.
Btw I would be delighted to throw away my trusty quill, but as no court in the country appears to be willing or able to offer me a reliable wifi signal so that I can produce and email documents at court, that day is a sad and distant dream so off I go to trim another feather.
Or of course find a court that does not have an email system that dumps into trash any password protected documents.
Or work for a local authority that is so paranoid about data protection that it is a disciplinary offence to send a document that is not password protected.
Or have to go back to the office to send the order to the court by gsx secure email (only available to certain trusted staff and periodically deleted when the IT department forget again why legal insist on having that old archaic system that allows them to speak to the police and the court). And then separately email the password protected order to parties and counsel.
Then deal with all the emails from solicitors & counsel who have forgotten the password.
Then point out to all the solicitors & counsel the bit that says passwords cannot be sent by email.
Then deal with telephone calls requesting password.
Quill sounds good to me.
And as a further BTW I would be absolutely delighted to appear in whatever ‘compliance court’ they think can carve out of a judicial timetable which is already unable to offer my clients urgent hearings about urgent matters because they have no judges and no courts available. Bring it on. This is becoming delusional. I begin to wonder if some of the judges have the first clue about what life is like at the district judge level.
It is, of course, possible that one of the reasons judicial timetables are so squashed is that Judges are having to waste their time on irrelevant matters which should have been excluded before it got to Court. But I’m getting perilously close to quoting Munby so I’d better stop…
that might account for 10% of it. If that. The problems run way, way deeper than silly lawyers getting their knickers twisted over a need to move into the 20th Century – but by all means, carry on in that vein if it makes you happy.
Wi-fi reminds me that in the brand new state of the art super-duper Rolls Buildings you can often find a consultation room although you may have to go kick-ass to get it unlocked.
But the power sockets are high up on the wall and out of reach to anybody who uses a wheelchair and many who don’t. A DDA claim waiting to happen.
I’m sat with what I thought were tears of laughter rolling down my cheeks, but now I realise it may well be through despair!
Pingback: Foolscap on the hill | Children In Law | Scoop...
So after almost a year of proceedings relating to a large number of children, for whom the plan is adoption my DFJ today took great pleasure in drawing my attention to this judgment and the fact that my 5 lever arch files that were sent for IRH were in fact, in excess of 350 pages. I accept that the bundles were overflowing with court ordered assessments. I am resigned to the fact that court orders are regularly now at least 10 pages long, that the C110 has inexplicibly grown (yet contains the same information) and that the “concise” witness template alone runs to 12 pages. I can also accept that I now have 2 lever arch files (probably the wrong size and definately in excess of 350 pages) which contains guidance telling us local authorities how to be more concise. But, when considering this judgment and being faced with 5 lever arches I do feel slightly irked that the outcome was to adjourn matters through to a final hearing with a direction that everyone (including all 5 respondents) files updating statements! Do I include these statements in the bundle, do I throw them away? In fact do I simply cherry pick the evidence that I like and leave that in? No one else appears concerned or willing to assist in agreeing what should and what should not be in the bundle. It is not them that gets criticised. That is at least until half way through the final hearing when the local authorities again come under fire for not anticipating what the respondents cases were likely to be and including all of the evidence that they might require! Surely one of the reasons for an IRH is to consider the state of the evidence and ensure that the case is ready for final hearing – how can this happen if the Judge does not have sight of the evidence? The president makes a plea for restraint in the expenditure of public funds but from my perspective the bespoke tailoring of each and every court bundle for each and every hearing is significantly more resource intensive, even if it does produce a more wieldy and svelte bundle.
Yes, the President is somewhat quiet on the practical issue of what you are to do when the bundle has got too large as a result of people complying with judicial orders about the filing of documents. Frankly, I’d start by binning the section of applications and orders. And if the bundle is growing like that, put it as agenda item 1 on the advocates meeting, circulate in advance that the parties have a problem to resolve here and that you either agree together 350 pages, or adopt the Sullivan route and say that you get 87 pages each. Given that none of the advocates will have read deeply enough to be that specific, it is an exercise that’s doomed to failure, but at least you can show that you attempted it.
And yes, what will then happen at the final hearing is that a witness will refer to a document that is no longer in the bundle and all hell will break loose with everyone else insisting that it is outrageous that the LA can’t produce that material.
(I don’t know how a Judge can rule on what is in or out if they don’t actually have the material itself to look at. Sure, of course they can decide that we don’t need the school records or contact notes unless anyone has compelling reasons why not, but if the ‘core bundle’ is over 350 how can they rule on which statement is in, or which is out, if the parties can’t actually agree between themselves?)
I agree that bespoke bundles for every hearing sounds like a logistical nightmare for all concerned. I really can’t see why we can’t have a judicial reading list which must not exceed 350 pages, with all other documents being available and the Judges attention drawn to individual pages if need be.
I just can’t understand what was wrong with Core Bundles.
Index for full bundle (so judge knows everything that has been filed & parties can keep their bundles up to date – not a minor issue as any local authority solicitor tired with dealing with repeated requests for documents that solicitors for parents/child have lost/mislaid/ supposedly never had will tell you)
Highlight in index the documents in the core bundle.
Core bundle of less than 350 pages. Job done.
Also the reality of Advocates Meetings and trying to agree what should be that in that bundle: –
LA – we should have just documents 1, 3, 5 & 7.
Office junior for Mother – I am just an office junior. Our client has not done her statement yet. We have instructed counsel for the hearing and can agree nothing until she has told us how to clean our bottoms.
Baby Barrister for Father 1 – I am just a baby barrister and the great and fearsome Oz will appear at the actual hearing and till then I can agree nothing.
Father 2 (choosing to appear in person) – this is all a conspiracy against perfect parents. Any attempt to exclude from the bundle the manifesto of the Freemen of the realm proves the violence inherent in the system.
And so it goes.
I agree with you. I can only see a Re L type bundle turning into this exchange in the witness box
Counsel : And what’s your evidence for X?
Witness : Well, from the case conference, mother admitted to X in that meeting
Counsel : One moment… that’s not in my documents?
Judge : Well, where is this document? If reliance is placed on it, we must all see it.
LA solicitor : Oh ffs. It was in the bundle – you chumps took it out.
Adjournment
(repeat to fade)
I have just sent off by post a bundle (hopeully it is a bundle) asking for permission to appeal Mr Justice Charles’ decision that I could not be my son’s health and welfare deputy. . My evidence was Mr Justice Charles judgment that I could not be the deputy.(22 pages unnumbered) My skeleton argument 60 words, I have done this without a solicitor and I am 80 years of age. Wish me luck
Good luck! If you’ve managed to condense your argument into 60 words that’s very impressive. Most Judges would be pleased with someone who keeps things crisp and to the point, so I hope that goes down as a good start for you.
Pingback: Bunch of fools(cap) / Pink Tape
Wow – I’ve missed all this: I’ve been away as a fool on a hill somewhere…
(1) It is proably misleading to call Sir Munp’s rant a ‘judgment’: there was no issue before the court which he had to decide. He makes on up in para [29], but at that stage the DJ had not finished his job. He had only given ‘leave’ to put papers to the LAA. He had not had the file back when the papers had elicited the LAA response with the result which Sir MunP describes. The next thing for the DJ to do – which Sir MunP did, with much harrumphing etc – was to define the docs which must be translated.
(2) Of – ‘And I’d suggest that article 6 does too
‘The applicant must have a real opportunity to present his or her case or challenge the case against them. This will require access to an opponent’s submissions, procedural equality and generally requires access to evidence relied on by the other party and an oral hearing.’
Where is that from, please?
(3) And, as Andrew says/implies, (a) people like Sir MunP need to decide whether they are to be administrators; and (b) if so, to stick to the law about making rules, directions etc. Of all people who want to make rules, a senior judge (like Sir MunP) must do so lawfully. And, I would add, to do so in language which ordinary people can undertsand. It is not only to parties to care proceedings (with wall to wall lawyers) to which this Presidential verbaige is addressed.
I am actually reading this in complete despair – what are we supposed to do with witness bundles if we send counsel to court??
You have to DX counsel a witness bundle and they have to carry it with them. Which is fine if their chambers is a ten minute walk from Court, not so fine if they are travelling from London to Oxford, or Bristol to Bath.