Sir James Munby, President of the Family Division, Practice Direction 27a and ‘the Delinquents’

All Family practitioners should now be familiar with the case of, In the matter of L (A Child) 2015 EWFC 15 (26 February 2015) FPR 2010. In summary this is about Practice Direction 27a – Family Proceedings: Court Bundles (universal practice to be applied in the High Court and Family Court). It provides guidance on court bundles that should be provided to a court for a hearing. A reminder of the main points,

‘ It (the Bundle) should be provided by the party in the position of applicant at the hearing (Para 3)
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 (Para 4)
There should be a case summary and a position statement from each party at the commencement of the bundle (4.3)
Where the bundle is re lodged it should be updated (4.8)
It should be A4 in size, printed on one side only and not be more than 350 pages (5)
It should be with the court not less than 4 days before the hearing and with counsel instructed not less than 3 working days before the hearing (6)
No later than 3pm the day before the hearing the Judges clerk hearing the matter should be emailed and the applicant should ascertain that the bundle has been received (8)
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’ (12.1).’

In the case of Re L I think Sir Munby got very “annoyed”, “perturbed “, or “not happy” in a case where PD27A had not been followed and said, inter alia, the following

‘My experience, shared by far too many of my brethren, is that in this respect, as indeed in too many other respects, PD27A is frequently, indeed in some places routinely, ignored.’ (Para 8) and went on,

‘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) Defaulter may find themselves exposed to financial penalties..
iii) Defaulters may find themselves exposed to ..sanction..

The Profession need to recognize that enough is enough. It is no use the court continuing to feebly issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions…..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. ‘ (Para 23)’

Of course the President of the Family Division and his Brethren should, like us professionals committed to family justice, condemn avoidable waste and delay in a case.

But at a time when many professionals are leaving practice because it is no longer tenable as the cuts to legal aid bite. And at a time when so many people face no access to justice at all or have to attend hearings in person, I think the following Practice Directions would be really helpful for those committed to legally aided work.

Practice Direction 1 Dealing Fairly With Those In Despair As They Attempt to Help Deliver ‘Justice’ In An Under Resourced and Overwhelmed Situation .

1. If the Court is going to keep you waiting for hours through no fault of your own it will apologise or express some sympathy and in certain situations meet your extra expenses, including any childcare costs.
2. The Court recognise that one of the main bars to women’s equal participation in public and political life is child care and as such would make all reasonable adjustments to avoid a punitive approach to its work.
3. The Court will be sympathetic to the impossibility of some demands in some cases as life sometimes means that documents just couldn’t get there in a timely fashion. Clients are late, too depressed to attend until the last minute and some just overwhelmed by the inequalities they face to enable you to draft their position until they attend at the last minute.
4. Some offices are so overwhelmed and underfunded that they just don’t have capacity to email before 3pm on the day of the hearing.
5. The Court appreciates the valiant efforts of most legal aid practitioners at a time when their efforts are subject to continuing cuts and uncertainty.

Rebekah Wilson
Views are the authors alone


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