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
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)  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:  Fam Law 680,  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 ( 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)  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.
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.