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A heartbreaking case of staggering genius

 

It isn’t really heartbreaking – when you read about how two people are arguing about how to divide a fortune of £144 million it stirs up the expression ‘my heart bleeds’, but it is a case where Holman J tackles the word ‘genius’   – and his approach interested me.

Gray v Work 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/834.html

 

It so happens that I agree with Holman J that the word is massively overused.  Just as a quick random sampling – 458,000 hits for “wayne rooney genius” and 35 million for ‘george north genius’  – both of whom are exceptionally talented and gifted sportsmen, but they aren’t geniuses  (geni-ii?)

  1. Paragraph 80 of Charman, excerpted in paragraph (vi) above, is one of several authorities that employ the word “genius”. It appears also in Lambert, and very recently in Cooper-Hohn, and in other authorities in which the court has debated whether the person claiming a special contribution possesses the quality of “genius.” I personally find that a difficult, and perhaps unhelpful, word in this context. To my mind, the word “genius” tends to be over-used and is properly reserved for Leonardo Da Vinci, Mozart, Einstein, and others like them. It may lead, as it did in this case, to the rather crude question to (in this case) the husband: “You don’t describe yourself as a genius, do you?” Not surprisingly, the husband, like any person with a modicum of modesty, was rather nonplussed by the question. Oscar Wilde is famously said to have declared that he had nothing to declare but his genius. More modest, even if exceptionally talented, people may be slow to make such a claim.
  2. What I understand is meant by the word “genius” in this context, and what is required for a claim to a special contribution to succeed, is some “exceptional and individual quality which deserves special treatment.” See Charman at paragraph 80. But the fact that judges have used the word “genius” in this context does tend to underline how exceptional, individual and special the quality has to be.
  3. It is clear from the above propositions and the outcome in other cases that hard work alone is not enough. Many people work extremely hard at every level of society and employment. Hard work alone lacks the necessary quality of exceptionality. Further, to attach special weight to hard work in employment risks undervaluing in a highly discriminatory way the hard work involved in running a home and rearing children.
  4. It is clear also that a successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time, or benefiting from a period of boom is not enough. It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skilful that past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.

 

[I think personally I would go with Da Vinci, Mozart, Darwin and Einstein, and I don’t tend to use genius for anyone else – I know that my definition is narrow. {I wrestled with including Orwell, but had to finally conclude that this would open the door to too many others. If Sherlock Holmes had been a real person, would he have been a genius? Just short, I think.}  It would be a definition which means that the special contribution ancillary relief test would not be met for anyone, were I deciding it, since those four men are long gone. And actually it conflicts with the second definition in the dictionary

an exceptionally intelligent person or one with exceptional skill in a particular area of activity.  So in the unlikely event that I was sitting on the Court of Appeal, I would overrule my own definition as being wrong…]
The other issue of general application relates to the ever popular (and I use ‘popular’ here to mean ‘hatefully recurring and more difficult to ignore than one would ideally like’ as in “One Direction are a very popular band”) theme of excessively large bundles
  1. The parties have spent approaching £3,000,000 on legal fees and associated expenditure. For that, you get very high quality legal teams, and each of them has been very well represented, but it does not appear to have facilitated a conciliatory outcome to this case.
  2. Further, some of the spending has been, in my view, profligate and unnecessary. Ordinary people litigating in the family courts about very serious issues, such as whether their children should be adopted or returned from care or whether life support of a child should be maintained or ended, do not have the luxury of, nor, frankly, the need for, two shorthand writers in court throughout the hearing, producing overnight transcripts to which negligible reference was later made. It is an extravagance. Whilst it was a privilege to hear from two Texan matrimonial lawyers, I do not think the cost of their travel and attendance was justifiable or necessary.
  3. The bundles were excessive and proved inconvenient for me, for witnesses who struggled with them in the witness box, and at least at one stage for Mr Howard QC. At one point we had the absurdity of going to one bundle for a letter and another bundle for the reply. There was a pre-trial hearing before a circuit judge on 3rd December 2014. He had no other involvement in the case either before or after that day. Amongst many other directions, he did formally give “permission for the trial bundle to be extended to six lever arch files…” I asked Mr Tim Bishop QC, who appeared on behalf of the wife, and who was present on 3rd December 2014, whether the circuit judge had exercised his own independent discretion in agreeing to six bundles, or whether he had been seduced by counsel. Mr Bishop immediately and frankly said that the judge had been seduced by counsel and that it was not an independent assessment by the judge. It was rubber stamped. This is not how the very important Practice Direction 27A is intended to be applied. Further, the cardinal and over arching words of the practice direction are the opening words of paragraph 4.1: “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 …” However many bundles the court may authorise, there should be no document within them which does not fall within that rubric in paragraph 4.1. I have not kept a tally in the present case, but I am confident that the total number of documents read or referred to is less than half the total of well over two thousand pages assembled in the bundles.
  4. In his judgment in L (a child) [2015] EWFC 15, handed down last week, the President of the Family Division has given due and crystal clear warning that these excesses will no longer be tolerated. What I wish to emphasise is that although that judgment related to care proceedings, every single word of the relevant part of it applies no less, and arguably more, to financial remedy proceedings.

I did rather like the language of whether in agreeing that there should be six bundles in the case, the Judge had been ‘seduced by counsel’.

I’m not sure that seduction efforts that involve allowing a Judge to permit additional lever arch files into evidence is going to be a subject matter that would particularly tempt Hollywood into incorporating it into Rom-coms, and probably it will be a while before my huge rollercoaster of a script “Pride and Pagination” gets picked up by Hugh Grant, but a man can dream.    [My action-ancillary-adventure movie starring Matt Damon  “The Besterman Cushion” is in post-production, so there’s that]

[I would have to say that having a letter in one bundle and the reply to that letter in a different one is fairly illustrative of things having gotten completely out of hand]

It is different counsel who later on posits that in the list of assets that the wife has suggested should be transferred to her contains some ‘duffs’ as well as ‘plums’  – I don’t think I am anywhere near well-bred enough to ever get away with using it; but I still liked it.

  1. The wife and her legal team have attempted to avoid the dispute as to discounts by proposing what they call Wells v Wells sharing. They have identified about 24 assets in the asset schedule which they suggest should be transferred in whole or in part to the wife, inclusive of any inherent discount. Whilst I welcome and appreciate their desire to minimise costs and potential further litigation, I am unable to accept that proposal. The present hearing has been largely occupied with the evidence and argument as to the two issues of the agreement and of special contribution. There simply has not been time, in the time estimated and allotted for this hearing, to hear either evidence or argument as to discounts.
  2. Mr Bishop says that their proposed Wells v Wells sharing list contains “duffs” as well as “plums”. But that is mere assertion. I am simply unable to engage judicially in consideration of discounts, save on an item by item basis, upon which the court would need to hear both evidence and argument.

The case is well worth a read if you do ancillary relief, or enjoy watching very well paid lawyers squabble about millionaire’s money. The husband clearly had cojones that would have been setting off the security metal detector given that they began with an offer that was 2% to the wife, 98% to the husband and over the course of the hearing shifted that.

Very sensible, to shift.

But probably not from 2% to 0%.

The wife ended up with 50%  – which one might have thought was a result that one could have guessed at without spending three million on lawyers, but I suppose if you thought you could get away with 98% of the assets it was worth a punt.

 

Yet another of those big money cases that ate up precious High Court time, for a very small fee. I do wonder if the time has come for the Court to get a percentage of the assets in dispute where one is dealing with sums over twenty five million. The ancillary relief Court fee of £255 is not touching the sides of what these cases are actually costing the taxpayer.

Foolscap on the hill

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.

 

  1. 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”.

  2. 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.”

  3. 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.
  4. 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.

  5. 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 …”

  6. 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.

 

  1. 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.
  2. 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

 

  1. 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.

Tarama-TOLATA

 

I don’t normally write on financial cases, but this one is rather significant (and one can see that it might end up bleeding into other areas)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4110.html

 

Seagrove v Sullivan (Practice Directions re bundles and citations of authorities) 2014

 

This was a case in which Mr Sullivan had lived with Ms Seagrove for over twenty years and they had had children together, but never married. The youngest child was ten. Mr Sullivan owned a house, valued at around £2,300,000.

 

The equity in that property amounted to about £1 million.

 

Ms Seagrove had made a claim under TOLATA Trusts of Land and Appointment of Trustees Act 1996, and under Schedule 1 of the Children Act 1989 to seek a financial interest in that property and its 14 acres of land, as there was no marriage ancillary relief was not an option.

 

The case came before Holman J.

 

He was, well aghast doesn’t seem to overstate it. This former couple were litigating about whether Ms Seagrove was entitled to a half share in a property whose equity is worth a million, so the sum of money in dispute is £500,000.

 

For reasons that are unintelligible (unless you do cases involving financial disputes between former lovers where things have gone sour), they’ve spent £1,300,000 so far, arguing about £500,000.

 

Since she first instructed solicitors following the breakdown of their relationship, Sandra has incurred (including her estimated costs to the end of a fully contested current hearing) costs of about £800,000 inclusive of VAT. She, indeed, currently appears to be heavily in debt as a result. Larry has incurred costs of about £506,000, inclusive of VAT. So, between them, these two parties, who lived together for over 20 years and bore three children, to whom I am sure they are each devoted, have now incurred, or anticipate incurring, expenditure of about £1,300,000 on legal costs.

 

 

What are they arguing about? They are arguing about a claimed half share in an asset that may be worth around £1 million. So they are arguing about £500,000. What they have incurred in costs is not far short of three times the amount in dispute. Others might use other words of description, but as this is a judgment in a courtroom, I will merely say that the costs, and also the scale and intensity of this litigation, have been, and are, completely disproportionate.

 

 

Holman J was also considerably irritated at the volume of papers lodged in the case.

 

Having referred to the completely disproportionate costs that have been incurred, I turn now to the documentation which underlines the scale and intensity of this dispute. There were delivered to the court yesterday, or the day before, five large lever arch bundles of documents, which comprise over 2,000 pages, inclusive of the respective skeleton arguments, which are each just under 25 pages. There were also delivered to the court two large bundles and one more slender bundle containing no less than 32 authorities. As if that were not bad enough (as I will later describe), I was, frankly, flabbergasted this morning when the solicitors arrived at the court at about 10.10 am with another large cardboard box containing an additional five large lever arch files of additional documents (these are the ones with lavender coloured card on their spines). I have been told that those additional five bundles contain around a further 1,500 pages of documents. So, in aggregate, at the outset of this hearing, these parties are expecting consideration of all or part of 3,500 pages of documents as well as all or part of the 32 authorities. This needs to be considered within the framework that rule makers and the most senior judiciary have endeavoured to establish in order to ensure the proportionality of litigation.

 

 

It has been many years since I did a TOLATA claim, but a quick look at the Court fees schedule suggests that the fee is probably £255 (treating it as a family financial application), but no higher than £2,000 (treating it as a money claim).

 

I don’t know Holman J’s hourly rate, but to read 3000 pages is a considerable expense to the taxpayer, which is in no way covered by that standard fee.

 

I can imagine the baleful look that the solicitor got when he or she came in with a box of five further lever arch files.

 

 

Building on Mostyn J’s recent decision in Re J, Holman J reminded everyone about the Rules on bundles

 

 

In order to try to exert some control over documentation, which always has a considerable knock-on effect on the length and complexity of hearings, numerous practice directions have been made over the years by Presidents of the Family Division and other heads of divisions. The current practice direction in relation to bundles and documents is Practice Direction 27A, which is itself part of Part 27 of the Family Procedure Rules. This practice direction was issued by the President of the Family Division in April 2014. It was issued after a process of consultation with the well known professional organisations and associations of both the solicitors’ and barristers’ branches of the profession. It did not come out of the blue, and its existence has patently been well known now for an appreciable period of time by all the lawyers engaged in this case.

 

 

Of most relevance to the present situation is paragraph 5.1. That was specified by paragraph 13.2 to “have effect from 31 July 2014”. We are now four months on from 31 July 2014. Paragraph 5.1 provides as follows:

 

 

“Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one [I emphasise the word, one]A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text.”

 

A later “statement”, to which I will shortly refer, makes plain that the 350 sides of text must be inclusive, not exclusive, of the sides of paper in counsel’s skeleton arguments

 

 

That’s right – unless the Court has specifically directed so, there is to be ONE bundle, of no more than 350 pages (including skeletons)

 

Holman J noted what Mostyn J had said when deprecating the practice which has sprung up of the parties agreeing the contents of that one bundle between themselves, but then lodging loads of supplementary bundles on the basis that the Court would be bounced into allowing all of that material, and agreed.

 

 

Mostyn J continued in a very important passage:

 

 

‘I also deprecate a practice of circumvention of which I have become aware. That is for the lawyers for both sides to agree a single “core” bundle and, in addition, an archive of many volumes of expensively prepared secondary or background material. This archive is then brought to trial in the confident belief and expectation that the trial judge will grant permission pursuant to PD27A para 5.1 at the final hearing itself to use documents from the archive. This is no better than the old regime which the new prescription was designed to stamp out … It is possible, of course, that, unexpectedly, further documents may be need to be deployed at the final hearing; but the starting point, and the usual finishing point must be that all the relevant documents should be in the single bundle …”

 

 

The advocates attempted to argue that a previous direction given in the proceedings that

 

Bundles are to be agreed between the solicitors (in consultation with counsel) and prepared by no later than 14 days before the final hearing.

 

Was in effect a direction that the parties could lodge such documents as they agreed amongst themselves.

 

“I thought we had Cate Blanchett?”

 

https://www.youtube.com/watch?v=JDUoTHj8AJ4

 

Holman J manifestly disagreed

 

The argument was that, by saying that “bundles are to be agreed between solicitors”, Moor J was giving some apparent carte blanche to the parties, through their solicitors, to include in the bundles anything that they wished to do so. Mr Wagstaffe denied that he was advancing such an argument, but, frankly, that is what his argument amounts to. He submits that the use of the words “bundles are to be agreed between solicitors” amounted to a “specific direction otherwise” and authorised bundles to exceed a total of 350 sides of text. Logically, his argument does mean that all and any documents that the solicitors “agreed” could go into the bundles could indeed be included, no matter how many or how long.

 

 

To my mind, that argument is spurious. It is inconceivable that, at the same time as ruling, by paragraph 10 of his order, that skeleton arguments were not permitted to exceed 25 pages, Moor J could have intended, or for a moment contemplated, that he was giving carte blanche * to these solicitors and parties to put in whatever documents they liked, no matter how many pages. In my view, there is no “specific direction” otherwise in this case and, as castigated by Mostyn J at paragraph 47 of J v J, the lawyers in this case have approached the case as if the terms of the practice direction “just did not apply to them”.

 

 

The courts have to exert discipline in relation to this. I stress, as Mostyn J did in J v J at paragraph 53, that if parties wish, at their own expense, to litigate to their hearts’ content, with thousands and thousands of pages of documents, there is a mechanism available to them known as private arbitration. But litigation within the courts has to be the subject of much more rigorous discipline and structure, precisely because the courts have a duty to ensure that an appropriate, but only an appropriate, share of the court’s resources are allocated to any one case. The same judges have to deal also with an enormous number of very difficult cases involving the future of vulnerable children, and the care and treatment of sick people, including mentally incapacitated people. It is simply not tolerable that we go on and on affording to people like Sandra and Larry an estimated eight days of court time on a dispute that ultimately is measured in something not exceeding about £500,000.

 

 

The cost of running these courts is not inconsiderable. I cannot specify what the daily cost is, for I do not know, but the state has to provide and pay for the judge, the court staff, the “back office” staff, the provision of the courtroom, the maintenance of the courtroom and all the other associated costs. It is obvious that the daily running costs of a court and courtroom such as this run into several thousands of pounds. Multiply that by eight and one can see at once that there is an expectation that this state, which as we all know is struggling still to rein in the deficit following the recession, should expend completely disproportionate amounts on resolving issues and disputes of this kind.

 

 

[* the Judge clearly meant “Cate Blanchett” here]

 

https://www.youtube.com/watch?v=JDUoTHj8AJ4

 

 

The Judge also looked at the timescales for the final hearing

 

 

 

A large part of the ridiculous time estimates in this and other financial cases is referable to the sort of volume of documents, including authorities, that parties still assemble and marshal. This case was given an estimate of eight days, with a detailed trial template. That template contemplates that, after one day of reading and six days of evidence and argument, the judge should be able to give an ex tempore judgment on the afternoon of the eighth day, after merely the morning of the eighth day for consideration. It is fair to the parties and their lawyers to say that that “trial template” was annexed to the order made by Moor J on 11 June 2014. It may be that that particular judge has the mental capacity to listen to seven days of evidence and argument, to absorb up to 3,500 pages of documents and 32 authorities, and still give an ex tempore judgment in what, on that scenario, would be a very detailed case, after merely one morning of consideration. Frankly, I doubt it.

 

 

Currently, this estimate is an unrealistic estimate for a case on the scale that the parties or their lawyers contemplate. If this case were to run, including all the evidence and submissions, to the end of day seven, it would manifestly require at least two days for preparation of a detailed, considered judgment, and then a day for delivery of the judgment and working out the aftermath. In other words, frankly, as things stand, the estimate that the parties are putting forward is one not of eight, but of ten days.

 

 

If you think that Holman J was about to take ten days of litigation over £500,000 when the parties had already blown £1,300,000 arguing about it, then I have a bridge that I am interested in selling you.

 

I am absolutely determined, in this case, not to allow that to happen. There has been wholesale breach of the practice direction and of Mostyn J’s statement with regard to documents, and total disregard of the Lord Chief Justice’s direction with regard to the citation of authorities. I propose to deal with it, in this case, as follows. Except for the two skeleton arguments and the chronology, every single piece of paper that has so far been lodged will be taken away from this courtroom now. All the bundles of authorities will be taken away from this courtroom now.

              

 

I will adjourn this case now until 10.30 tomorrow morning. At 10.30 tomorrow morning, unless by then the parties have reached an overall settlement of this case, they must attend with one, single, composite bundle, containing not more than 300 pages as the President’s direction requires. I say 300, for I am excluding and retaining the two existing skeleton arguments, which, as I have said, extend to about 50 pages. There must be only one bundle of not more than five authorities.

 

 

If the parties cannot agree as to the contents of the documents bundle, then each side can select 150 pages of their own choosing, thereby making the total of 300. If they cannot agree on authorities, then they must at least agree on one essential authority (probably Jones v Kernott) and they may each include two further authorities of their own choosing.

 

 

On the skeleton authorities, Holman J was perplexed to see a bundle of 32 authorities, given that the two leading authorities are from the Supreme Court and that those authorities marshall and draw together all of the previous jurisprudence.

 

This morning, Mr Christopher Wagstaffe QC, on behalf of Sandra, and Mr Richard Todd QC, on behalf of Larry, have endeavoured to address these matters and, to some extent, to justify their positions. It is fair to say that, on behalf of Larry, Mr Todd immediately said that it was “absolutely right that the costs are disproportionate” and indicated that he and his side share my concern about the scale of the documentation. But even Mr Todd, in relation to the assembly of the 32 authorities in apparent disregard of the Lord Chief Justice’s practice direction, sought to justify his position. He fastened on the words “unless the scale of the appeal warrants more extensive citation”. He suggested in a general way that the law in relation to the topic of beneficial interests is complex, so that, somehow, the scale of this case warrants the citation of no less than 32 authorities.

 

 

I completely reject that suggestion. When the Lord Chief Justice referred to “the scale of the appeal”, which may be paraphrased as meaning, in this context, “the scale of the case”, that does not simply refer to legal complexity, but to the actual scale of the underlying litigation. This is not litigation about tens of millions of pounds. It is litigation about a half share in the former home in which these parties lived with their three children, having an equity of around £1 million and a half share, therefore, of around £500,000. In the context of family financial litigation, this is, in fact, a relatively small scale case these days.

 

 

The whole topic of beneficial interests following cohabitation has been the subject of recent consideration by the Supreme Court, in particular in the well known cases of Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53. It would be surprising, frankly, if it was necessary to look beyond those two authorities; but most certainly, when the Supreme Court has, on more than one recent occasion, traversed all the historic law in relation to this topic, it is quite ridiculous and completely disproportionate to produce bundles of no less than 32 authorities. I know that some of Mr Todd’s authorities relate to some separate argument that he wishes to run with regard to “laches” and limitation, but that does not provisionally strike me as a very promising line of argument in this case.

 

 

Mr Wagstaffe began by referring to the undoubted fact that, in the recent authorities to which I have just referred, the Supreme Court have said one has to have regard to the whole course of dealing between the parties; and of course I accept that. In a general way, one does indeed have to begin at the start of the relationship between Sandra and Larry in 1989 and look at their financial dealings since then. That is why, provisionally, it does not seem to me that Mr Todd’s argument based on laches and limitation is on very fertile ground.

 

 

The Supreme Court, by what they said in those authorities, cannot have intended courts to disregard the overriding objective in both the Civil Procedure Rules and the Family Procedure Rules; nor to disregard such an integral part of the Family Procedure Rules as the practice direction with regard to court bundles. The court must, from first to last, have regard to proportionality and all the other non-exhaustive matters listed in rule 1.1(2). So I do not accept for one moment that there is something about the facts or legal context of this case which enables or requires proportionality and the practice direction to be disregarded.

 

 

The Judge invited the parties in very strong terms to stop throwing their money at lawyers and come to a sensible agreement, which they duly managed the next day.

 

If you have a Court hearing next week before Holman J and you have ten bundles, I’d get on the phone to the other side and get 300 pages agreed, pronto.

Bundles

 

Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11

 

Well, perhaps having hit practitioners with 18 new statutory instruments containing the rules for how things are to be done on Tuesday 22nd April, many of which we got on Wednesday (two working days before) might not be classed by some churlish curmudgeons as smooth and efficient.

[As you may have picked up over the last two years, I READ. I quite like reading law. I even quite like reading statutory instruments. But I draw the line at reading 18. If even I’m not reading them, I have to ponder “Who is?”]

 

Perhaps also having changed the rules about bundles from next Tuesday, and doing so two working days before, after most of them would have already been sent out, could have been smoother and more efficient, but you’d be a fool and a communist to say so.

 

Anyway, here are the President’s new rules about bundles.

 

http://www.familylaw.co.uk/system/uploads/attachments/0008/5165/FPR_PD_27A__Bundles_.pdf

 

I think on the whole, I rather prefer Sedley J’s rules

 

http://heinonline.org/HOL/LandingPage?handle=hein.journals/judire1&div=8&id=&page=

  1. First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.
  2. Second Law: Documents shall in no circumstances be paginated continuously.
  3. Third Law: No 2 copies of any bundle shall have the same pagination.
  4. Fourth Law: Every document shall carry at least 3 numbers in different places.
  5. Fifth Law: Any important documents shall be omitted.
  6. Sixth Law: At least 10 per cent of the documents shall appear more than once in the bundle.
  7. Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.
  8. Eighth Law: At least 80 per cent of the documents shall be irrelevant. Counsel shall refer in Court to no more than 10 per cent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.
  9. Ninth Law: Only one side of any double-sided document shall be reproduced.
  10. Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.
  11. Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by: a steel pin sharp enough to injure the reader; a staple too short to penetrate the full thickness of the bundle; tape binding so stitched that the bundle cannot be fully opened; or a ring or arch-binder, so damaged that the 2 arches do not meet.

 

 

In any event, changes are afoot on bundles. People need to be aware that none of the source material will be in a bundle read by the Court UNLESS the Court has specifically directed its insertion. If you want to rely on contact notes, foster care records, police disclosure, medical records, school reports, then you are going to need to apply for them to be added to the bundle – and expect to have to justify exactly why they are proportionate and necessary.

 

That is going to be particularly important if you have picked up a final hearing brief for which someone else did the IRH – if they got the contact notes in, you’re going to be expected to make some use of them or annoy the Judge who agreed to their insertion, or worse – if counsel at IRH didn’t ask for them and you want them, you’re going to have to make an application. (And those notes won’t be available at a moments notice, so I suspect you will need to put everyone on notice in good time that you intend to do so)

 

Everyone is to file a position statement, limited to 2 pages, for each hearing. And they are expected to set out the orders they seek both at that hearing and final hearing.  (Expect to see a lot of bland “We seek Care / Supervision Orders at final hearing, depending on the outcome of assessments” because anything else from the LA or Guardian is a hostage to fortune / evidence of prejudgment)

 

Case summaries are limited to 4 pages – bad news for any existing pro-formas in courts around the country  which would run much longer than that.

 

Case summaries for cases done before justices are to be anonymised.  (I know, they are sent to the justices along with a bundle of papers that are not anonymised, I have no idea what ill this is intended to remedy or what sense it is intended to make)

 

4.4 Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents.

 

 

You will also note that in cases before the justices, we need to count the pages for them. DJ’s and circuit judges are expected to be able to count for themselves, one surmises.

 

This bit is going to be loved by Local Authorities who are dealing with the RCJ  (thank God, it only applies to  the RCJ. The people who wrote this have CLEARLY never tried to have a productive telephone call with the RCJ)

8.2 Upon learning before which judge a hearing is to take place, the clerk to counsel, or other advocate, representing the party in the position of applicant shall no later than 3 pm the day before the hearing:

(a) in a case where the hearing is before a judge of the High Court,

telephone the clerk of the judge hearing the case;

(b) in a case where the hearing is before any other judge email the Clerk of the Rules at RCJ.familyhighcourt@hmcts.gsi.gov.uk;

to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall organise prompt delivery by the applicant’s solicitor.

 

The bundles are to be limited to 350 pages or less – unless the Court orders otherwise. In case you were thinking of being a wise-guy loophole sort of person, they have already anticipated that you might just use REALLY HUGE pieces of paper

 

5.1 Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text.

 

 

Okay, so if I can’t use REALLY HUGE pieces of paper, I’ll just write really small. Nope, already got that covered

 

 

5.2 All documents in the bundle shall (a) be copied on one side of paper only,unless the court has specifically directed otherwise, and (b) be typed or printed in a font no smaller than 12 point and with 1½ or double spacing.

 My last loophole is that there is not a requirement that the bundles be written in English, so I can lodge everything in shorthand and still comply with the practice direction.

[By the way, all of my bundles are currently double-sided, which means that everyone now has to photocopy them all again single-sided and confidentially shred the ones that were perfectly fine yesterday.  Approximately 11,000 cases across the country, each shredding 200 pieces of paper purely for the benefit of this practice direction. I hope Sting doesn’t read my blog. Also, 350 pages of single sided paper don’t actually fit into a single lever arch folder… 350 pages of double-sided can be a bit of a tight squeeze]

 

5.3 The ring binder or lever arch file shall have clearly marked on the front and the spine:

(a) the title and number of the case;

(b) the place where the case has been listed;

(c) the hearing date and time;

(d) if known, the name of the judge hearing the case; and

(e) where in accordance with a direction of the court there is more than one ring binder or lever arch file, a distinguishing letter (A, B, C etc).

 

[As has been pointed out, as nobody any longer knows how to distinguish between two separate buildings – Trumpton Family Proceedings Court and Trumpton County Court, since on Tuesday they are both just Trumpton Family Court, that’s not that easy any more]

 
All numbering is to be “Arabic”  

Well, if that will help…

  • 1 – Wahid
  • 2 – Ithnaan
  • 3 -Thalaatha
  • 4 – Arba’a
  • 5 – Khamsa
  • 6 – Sitta
  • 7 – Sab’a
  • 8 – Thamania
  • 9 – Tiss’a
  • 10 – ‘Ashra

If you need to go up into the hundreds, here’s the link http://blogs.transparent.com/arabic/arabic-numbers-1-100/

And of course, there’s a stick for any breach of the practice direction – you can be kicked out of the list, kept back to the end of the list or be hit for costs.

 

Penalties for failure to comply with the practice direction

12.1 Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a “wasted costs” order or some other adverse costs order.

 Remember, this applies from Tuesday next week. Happy Easter.

 We ask again…

Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11 

To end on a happier note – this being Easter, and it being a piece about bundles AND my blog title being inspired by Dr Seuss  – this is an actual genuine US judgment refusing to allow a party to exhibit a hard boiled egg to his statement

http://kevinunderhill.typepad.com/Documents/Court_Orders/Hard_Boiled_Egg.pdf