PRACTICE DIRECTION 27A – TRIAL BUNDLES: A TIMELY REMINDER

In his “4th View from the President’s Chambers: An update” Sir James Munby, the then President of the Family Division, said: “Not every document that has been served or filed needs to be included in the bundle. Many do not. Surely, for the future, bundles should contain only those documents that the court needs to read or which will actually be referred to during the hearing. Everything else should be omitted. I suspect that a single lever-arch file will suffice for the majority of care cases.” Unfortunately, it is my experience that these sentiments are observed more in the breach than in compliance and this is not solely restricted to public law children cases. I recently had to admonish solicitors in a financial application for producing a bundle for a final hearing which was more than three times the maximum imposed by the rules. It did not include the key documentation required to prove the case and the majority of what had been included was superfluous.

Practice Direction 27A – Family Proceedings: Court Bundles (PD27A) gives details about how bundles should be presented, by whom, and where and when they should be lodged. It applies to all hearings of whatever duration proceeding either in the High Court or the Family Court save in relation to urgent hearings; and only to the extent it is not possible to comply with it. It applies whether the bundle is being lodged for the first time or being re-lodged. PD47A sets out key requirements in relation to the responsibility and preparation of the bundle including agreeing the contents of the bundle between the parties, and that bundles should contain only those documents that the court needs to read or which will actually be referred to during the hearing. “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 be used, in the sense that it will either be read or referred to” (Re L (A child) (2015) EWFC 15). The PD also specifies the required format (eg one A4-sized ring binder or lever arch file limited to no more than 350 sheets of A4 paper printed on one side only), what is and is not to be included and the lodging of bundles with the court. Note also the guidance provided in a 2016 ruling: “The need for earlier preparation and service places obligations on advocates and those who instruct them, but that is necessary to prevent the intrinsic unfairness to LIPs that may arise from late service...

Where one party is represented and the other is a LIP, the court should normally direct as a matter of course that the Practice Direction documents under PD27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English.” “The method of service, usually email, should be specified. Where time permits, the court should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.” (Re B Litigants in Person: Timely Service of Documents) (2016) EWHC 2365) PD27A also requires bundles to be arranged in a prescribed manner; and all parties must file and serve position statements for any hearing listed for longer than one hour (except if before the lay bench or otherwise directed). The statement must contain a summary of the order or direction sought at the hearing and at the final hearing. Where the proceedings relate to a child and are being heard by lay justices, the summary of the background application should be prepared in anonymised form, though identifying information can be contained in all other preliminary documents.

SKELETON ARGUMENTS AND DOCUMENTS

Skeleton arguments must comply with CPR Practice Directions 52A and 52C as well as with PD27A. Also, when citing authorities Practice Direction: Citation of Authorities requires the bundle of authorities in general to:

— have the relevant passages of the authorities marked;

— not include authorities for propositions not in dispute; and

— contain no more than 10 authorities.

EXCLUDED DOCUMENTS

Certain documents must not be included in the bundle unless specifically directed by the court, such as correspondence, medical records, financial records such as bank statements and social services files. If any such documents are likely to be relied on, an application to court for their inclusion – and the justification for it – must be made before the hearing.

Again, this is often not being observed; and if it is intended to include such documents, a further direction will need to be sought to exceed the 350-page limit. It is also important to remind practitioners that authority to exceed the bundle limit prescribed should not be a blank cheque and a new maximum should be set out – whether that is 500, 750, 1,000, etc pages. If the limit is to be exceeded, you also need to consider whether the judge should be allocated some reading time. Even 30 minutes in an otherwise busy list is better than none at all. There is an important provision in Paragraph 7.6 of PD27A: where the designated family judge directs, proof of posting or despatch of the bundle must be brought to the court on the day of the hearing – and produced to the court on request as proof of compliance. If it can’t be produced, the court may treat the bundle as having not been lodged for the purposes of a finding of non-compliance. Sanctions could then be imposed.

PAGE LIMITS

t is important to note that PD27A was revised in July 2018 making three changes, notably the introduction of page limits for certain types of document:

— Witness statements to a maximum of 25 pages; Expert reports to a maximum of 40 pages; and

— Care plans to a maximum of 10 pages. It also made clear that the PD (with certain modifications) applies to electronic bundles as well as paper bundles.

TIME ESTIMATES

Time estimates must be inserted at the front of the bundle and agreed by all the parties. These should specify separately the time estimates required for judicial pre-reading, hearing all evidence and submissions and preparing and delivering judgment. These will be prepared on the basis that before giving evidence, all witnesses have read their statements; so it will be important that each party ensures witnesses have done so for the case to proceed within the allotted time. Time estimates should also account for additional time which is likely for the use of interpreters or intermediaries. Any change in the time estimate must be notified immediately by telephone to the court and confirmed in writing.

NON-COMPLIANCE Practitioners should pay particular attention to the threats of sanctions in cases of non-compliance under paragraph 12.1 of PD27A (echoed in Re X & Y (Bundles) [2008] 2 FLR 2053 and reiterated in B v B [2012] EWHC 1924):

— An order for costs (including wasted costs) against the defaulting party and/ or defaulting lawyer;

— The defaulting case may be put back to the end of the day’s list or adjourned altogether; and

— In particularly egregious cases, defaulting practitioners may be publicly named in open court judgments. If anyone is in any doubt whether PD27A has teeth, look no further than the cases of J v J [2014] EWHC 3654; Seagrove v Sullivan [2014] EWHC 4110; Re L (A child) [2015] EWFC 15 and Re D & R (Children) Fam Ct 30/11/2015.

In these cases, future case management orders had to routinely contain a requirement that when filing a hearing bundle, the party filing it had to attach a certificate of compliance in the form set out in the judgment and signed by the solicitor with overall responsibility for the case. Continuing failures to comply thereafter would be dealt with robustly. You have been forewarned! As a postscript, I sent the following email to the solicitors in the case I referred to at the beginning of this article which (as you can imagine!) lead to a flurry of activity over the course of the following few days: “Dear both This case has been listed before me next week.

I have requested the trial bundle in readiness for the hearing (as I am not sitting tomorrow) in order to read the papers. I have subsequently been presented with two lever arch files comprising in excess of 800 pages. There is no application to exceed the 350- page limit as prescribed by PD27A as far as I can tell nor is there any order permitting such an extension contained within the bundle. Furthermore, bank and credit card statements and other financial records (which incidentally forms a whole lever arch file in itself ) should not be included in the bundle unless specifically directed. Again there appears to be no such direction. May I also remind you that bundles should contain only those documents that the Court needs to read or which will actually be referred to during the hearing (PD27A paras 3.2 and 4.1): “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 be used, in the sense that it will either be read or referred to” (Re L (A child) (2015) EWFC 15) I therefore expect to be furnished with first thing on Monday an agreed PD27A compliant bundle consisting of no more than 350 pages which must include the case summary, statement of issues, chronology and schedule of income, assets and liabilities none of which are currently in the bundle that I have.

As you are aware this wholesale disregard of the court rules is not acceptable and I refer you to the following cases: Re X & Y (Bundles) [2008] 2 FLR 2053 B v B [2012] EWHC 1924 J v J (2014) EWHC 3654 Seagrove v Sullivan (2014) EWHC 4110 Re L (A child) (2015) EWFC 15 Re D & R (Children) Fam Ct (Judge Clifford Bellamy) 30/11/2015