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Important High Court authority that states that where a case involves both a Litigant in Person AND a lawyer, the lawyer has to ensure that any case management documents and case law is provided to the litigant in person at least THREE WORKING DAYS before a contested hearing.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2365.html

 

This, when you see it in black and white is of course fair. In this case, the litigant in person was handed counsel’s position statement and case law relied upon at the first morning of the final hearing, 114 pages of fresh information, much of it quite dense. That can’t be fair.

It will though necessitate a change in working practice. The reason the documents aren’t provided three days in advance generally is that they just don’t exist at that point. We have got used to a “Just in Time” pace, where the substantial prep for a hearing is done closer and closer to the actual hearing; in part just as a result of volumes of work and in part because with so many cases the position three days before a hearing bears little relationship to the position AT the hearing.

 

This is going to apply to a lot of private law cases, but also care proceedings where there’s an unrepresented Intervenor or party such as grandparents. It will also apply to adoption and leave to oppose adoption cases where it is very rare for the parents to obtain free legal representation.

 

The Judge, Mr Justice Peter Jackson also reminds us of the Practice Direction Rules which state that a bundle must be provided to counsel not less than 3 working days prior to the hearing.

 

The Rules

    • PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:
  • The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing
  • Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing
  • The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing
  • The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that

 

 

Hands up anyone who is regularly experiencing that.

 

Ah, I see Ms Azim of counsel is rising to her feet. To agree that she always receives bundles three working days before the hearing in accordance with PD27A ?  Not quite

 

http://www.familylaw.co.uk/news_and_comment/this-lawyer-s-life-ping-goes-the-practice#.V_ixssk1Ouc

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

15 responses

  1. In the old MKF rules it had a section that court papers had to be served on Litigants “In good time” before the hearing in order for the Litigant to obtain advice on said papers.

    I recall a Judgment that sugested statements had to be given to LIP’s 48 hours before a hearing and expert reports and assessments at least 7 days prior to hearing.

    What I would say here that I think this is not about overload with work, at court when time scales for filing papers is discussed and ordered, folks should stick to timeframe, if not possible then don’t tell the courts and all papers can be filed by such the time, simples!

    • No, its not about overload, and even if it were, the court is under a paramount duty to ensure a fair hearing.

      More and more are now LIPs, and the Judge should ensure, that they, of all people, have notice of what is going to be raised at hearings.

      Remember too, these hearing are supposedly quasi inquisitorial ………………..but could not be more adversarial, as every trick in the book appears to be allowed.

      Effectively, LIPs are denied even their very basic rights under natural justice, let alone those under the court protocols.

  2. I can only speak from personal experience .I was a McKenzie friend for one mother and just before the court began the barrister for the L.A came over to the mother handing her some papers and saying “Here is the position statement of the local authority you must not show it to anybody” I interjected “she can show it to me!” . The lady barrister swiped the papers back from the mother’s hand with an look of icy contempt for me and went off without a word !
    That was worse than usual but it is still very common for the LA to deliver their papers on the same day as the court poceedings begin…………

  3. ashamedtobebritish

    I had a guardian (who could not attend) email her position statement at 8.30am on the morning of a FH, we were in at 10.30 … not helpful, trying to get it printed and digest what she was saying, then travel to court.
    I felt the client had been let down, the children certainly were, as the judge put one of them in serious danger due to this rushed mish mash that was written

  4. Your comments please. A GAL made an application to instruct an expert. The mother was handed the written application on the day of the verbal application. She had no time to read the content and no time to consider an independent expert. The judge made an order in favour of the GAL. The mother opposed the instruction. Only the GAL and SS agreed to the application. The mother was LIP. The SS and GAL agreed to fund the expert. Would this be grounds for an appeal?

    • ashamedtobebritish

      It depends – if the expert is proven to be needed, then what grounds for appeal do you have?
      The judge has to give reason as to why he’s made any decision

  5. Hertfordshire… after months of battling, 6000 pages delivered in the post at 10am with the court expecting a response by 4pm the same day.

  6. Reblogged this on | truthaholics and commented:
    “Important High Court authority that states that where a case involves both a Litigant in Person AND a lawyer, the lawyer has to ensure that any case management documents and case law is provided to the litigant in person at least THREE WORKING DAYS before a contested hearing.

    http://www.bailii.org/ew/cases/EWHC/Fam/2016/2365.html

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