X and Y, Re Bundles

It is over eight years since 10 March 2000, when the then President, Dame Elizabeth Butler-Sloss P, issued Practice Direction (Family Proceedings: Court Bundles) [2000] 1 FLR 536. It is over two years since 27 July 2006, when her successor, Sir Mark Potter P, issued Practice Direction: Court Bundles (Universal Practice to be Applied in All Courts other than the Family Proceedings Court) [2006] 2 FLR 199. My experience, which is shared by too many of my brethren, is that far too often the Practice Direction is still being honoured more in the breach than the observance. Too often bundles arrive late or not at all. Too often bundles are incomplete or not up-to-date. Too often skeleton arguments and other preliminary documents (see paragraph 4.2 of the Practice Direction) are handed in on the morning of the hearing – at 10 am, 10.15, or even later – and at a time when the judge is already sitting or is struggling to assimilate other documents which have also been handed in late. The problem, in my experience, is particularly acute when the judge is sitting as urgent applications judge and, in those circumstances, particularly serious in its consequences. For those who cannot understand why, I would direct attention to the appropriately pungent observations of Wall J (as he then was) in Re CH (family proceedings: court bundles) [2000] 2 FCR 193 at page 195i. Late, I suppose, is better than never, but it is never acceptable.

This continuing failure by the professions to comply with their obligations is simply unacceptable. Enough is enough. Eight years of default are enough. Eight years are surely long enough for even the most casual practitioner to have learned to do better.

The revision and elaboration of the Practice Direction in 2006, undertaken in the light of six years’ experience of the workings of the original Practice Direction, was intended to clarify what was required by the Practice Direction, to remove anything which even the most ingenious pedant could possibly claim was obscure or ambiguous, and to ‘stop up’ every possible loophole. As one of the draftsmen of the revised Practice Direction I am willing to admit that my approach was to make the document watertight. I frankly confess to having obviously failed in that endeavour.

I wish to emphasise that the purpose of the Practice Direction is not to make the lives of the judges easier. On the contrary, it is simply a reflection of the increasing burdens being imposed upon judges at all levels in the family justice system who, faced with ever-increasing and almost intolerably overloaded lists, are required – and, I emphasise, willingly agree – to undertake a workload, much of it in their own time, which even their comparatively recent judicial ancestors would have found astonishing.

In the more spacious days of my legal youth, judges rarely pre-read very much. Often, much of the first day of any High Court case of even moderate length was taken up by an opening during which counsel took the judge, vive voce, through the bundle, reading out everything which either he or his opponent thought might conceivably be relevant. All that has long since been swept away. Skeleton arguments became the norm and then in due course extensive judicial pre-reading of bundles. More recently the Practice Direction has laid down – and for very good reason I should say – deliberately very prescriptive requirements as to the contents and format of the bundle and (set out in paragraph 4.2) as to the form and content of the ‘preliminary documents’ which are to be included in every bundle. The purpose of all this is to ensure that the judge can embark upon the necessary pre-reading in a structured and focussed 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 focussing 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.

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. Cases are delayed because the judge has to take up time – time that would otherwise have been spent productively in court – reading materials that would otherwise have been pre-read. The hearings themselves tend to take longer. So cases overrun. Sometimes the only solution is to adjourn the case and re-list it, sometimes to the prejudice of other cases. Given the extent to which judges are nowadays listed back to back with cases reserved or allocated to them, the knock-on effects can be serious – not just for the litigants whose defaults have caused the problems but for other entirely innocent litigants who, having themselves complied with the Practice Direction, then suffer delay and prejudice as a result of the defaults of others.

In the case of those who practise regularly in the family courts there is, and can be, absolutely no excuse for not being completely familiar with the Practice Direction and its contents and complying meticulously with its requirements: see the observations of Wall J in Re CH (family proceedings: court bundles) [2000] 2 FCR 193. But nor is there any excuse for those who may find themselves in a family court less frequently or as birds of passage. It is the professional obligation of practitioners making a visit to some unfamiliar court or tribunal to identify in good time whether there is some particular Guide or Practice Direction or other document regulating practice before that court or tribunal and, if there is, to familiarise themselves with its requirements and then to carry them into effect. A family lawyer who strayed into the Chancery Division or the Queens Bench Division without having first assimilated the requirements of the Chancery Guide or the Queens Bench Guide would receive short shrift. There is no reason why similar standards should not apply and be enforced in the family courts.

It is convenient to refer at this point to part of a judgment which I delivered on 16 August 2007 in private and which has not hitherto entered the public domain:

Nothing that has happened since then suggests that matters have improved. I see no reason to modify or to moderate what I then said.

Almost precisely a year later – on 18 August 2008 – I was faced with a similarly egregious failure to comply with the Practice Direction. (I had in fact had many similar experiences during the intervening period.) A bundle and a skeleton argument reached me, having been hand-delivered by counsel’s clerk to my court, at 10.20 on the morning of the hearing. Prior to then, all that had been lodged in accordance with the Practice Direction was an appropriately brief and focussed skeleton argument from the respondent which enabled me to see that what I was supposed to be hearing was an appeal from a decision of a District Judge sitting in the PRFD in an application brought under Part IV of the Family Law Act 1996. When I examined the bundle, during the ten minutes or so which was all I had before going into court at 10.30 to hear the first case in my list, I found that the index at the front of the bundle proclaimed it to be the index to the bundle for a hearing on 28 and 29 July 2008 in the PRFD. Counsel’s skeleton argument likewise proclaimed on its front page (cf paragraph 4.3 of the Practice Direction) that it had been prepared for a hearing on 28 July 2008. I was of course sitting not in the PRFD but in the High Court and not on 28 July 2008 but on 18 August 2008, so the relevance of the bundle was not immediately apparent to me. I searched in the index for any reference to a notice of appeal; I found none. I searched for any order made in late July 2008; I found none. I searched for the transcript of a judgment, but the only judgment I found was dated 14 March 2008 whereas the other indications I had seen suggested that I was concerned with something which had happened in the PRFD in late July 2008. At this point I had to go into court.

Once I had dealt with the first case in my list, the other case was called on. I expressed my grave concerns about the state of the bundle and its late delivery. I was given two explanations.

The first, which went to the content and format of the bundle, was to the effect that the appeal was indeed from the judgment given on 14 March 2008, that the notice of appeal was in fact to be found in the bundle, albeit unhelpfully and inaccurately described in the index as an “application notice”, and that the bundle had indeed been prepared for the hearing of the appeal, which had been listed on 28 July 2008 albeit that the case had then had to be adjourned until 18 August 2008. I was handed up copies of the two orders which had been made on 28 July 2008. They could and should have been included in the bundle; they were not. Counsel, to whom credit is due for not attempting to make excuses, and who readily acknowledged his responsibility for those of the failings which were down to him, accepted that I had, albeit wholly unintentionally, as of course I accept, been misled by the erroneous references in the index and the skeleton argument to a hearing on 28 July 2008, rather than on 18 August 2008, and by the erroneous reference in the index to the PRFD, rather than the High Court, and by the omission from the bundle – in my judgment a clear and significant non-compliance with the Practice Direction – of copies of the orders made on 28 July 2008 and of any document explaining that the bundle had been prepared for a hearing which had had to be adjourned. In part these deficiencies were the responsibility of counsel; in greater part the responsibility of the solicitors.

Now if I had had the luxury of more time in which to study the skeleton argument and the bundle and its contents I would no doubt have discovered what had been going on, what it was I was supposed to be deciding, and what I should be reading. But due to the late arrival of the bundle and the skeleton I did not of course have that luxury, for by the time I had reached this point I had to go into court to hear the other case. And if I had been given more time, I would in part have been wasting my time for of the two primary matters identified in the skeleton argument as requiring decision, one, as I was subsequently told, though there was nothing in either the bundle or the skeleton to alert me to this fact, had in fact been resolved at the earlier hearing on 28 July 2008 and therefore no longer required my consideration.

In case some may think that I was being unduly pedantic, and that I should have assumed that I did indeed have the correct, up-to-date, bundle and the correct up-to-date skeleton, I would observe only that too often, particularly when complaint has properly been made, as here, that no bundle has been lodged, the bundle which eventually arrives – late and in haste – is the bundle used on some previous occasion and without any of the relevant Practice Direction updating material within it, just as, too often, the requirements of paragraph 4.7(b) of the Practice Direction – that all superseded documents and outdated skeleton arguments shall be removed from the bundle – are not complied with. So it is far from exceptional to receive a bundle which is in fact the unaltered and out-of-date bundle from an earlier hearing.

The other explanation went to the late delivery of the bundle. It emerged that the solicitors had lodged a bundle in early August 2008, but at the PRFD and not with the Clerk of the Rules, as required by paragraph 7.2 of the Practice Direction. And at this point, of course, their error, bad enough though it was, was compounded in its consequences by the fact that the index proclaimed the bundle as relating to a hearing at the PRFD and, moreover, on a date which had already passed; so it is hardly surprising that the PRFD did not transmit the bundle to the Clerk of the Rules.

In the upshot the case had to be adjourned, for there would not have been sufficient time for me both to read the bundle and hear argument before the end of the day and there were other cases in my list the following day which I was not prepared to disturb. Luckily for the parties, and more importantly without prejudice to anyone else, it was possible to re-list the case for hearing in the near future.

These two examples – one in August 2007 and the other in August 2008 – are merely two out of far too many such instances that merit comment and criticism.

Paragraph 12 of the Practice Direction warns of sanctions penalising those who fail to comply with its requirements. There is the sanction of costs, either orders for costs against the party in default or orders for costs to be paid by the defaulting lawyers. There is the risk that those who default may find their cases put to the end of the list – and I should like to emphasise that the plea ‘but the case will only take 30 minutes, including reading time’ will not necessarily save defaulters from this salutary fate. Why, after all, should others in a busy list who have complied with the Practice Direction be held up? Sometimes, as in the second of the cases I have mentioned, there will be no option but to take the case out of the list altogether – to adjourn to a date which may or may not be in the near future. In particularly egregious cases, defaulters may find themselves publicly identified in judgments delivered in open court.

It would not, in my judgment, be fair or just to expose a practitioner to this last sanction without fair public warning having been given that the sanction is available and that it may be applied in appropriate cases. I have therefore not identified anyone involved in either of the cases to which I have referred. But the professions have now been warned. Next time a defaulter may not be so lucky.