A Lot of Fuss about Court Bundles

An issue that has recently been making several senior judges very angry indeed is the size of court bundles.

Practice Direction 27A

Practice Direction 27A of the Family Procedure Rules 2010 sets out a long list of rules with which court bundles must comply, including who is responsible for preparing them, how they should be arranged, when they must be delivered, and what they should contain. There are two paragraphs of particular importance to the recent judicial ire:

Paragraph 4.1 says this (in so far as relevant to financial relief proceedings):

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. In particular, copies of the following classes of documents must not be included in the bundle unless specifically directed by the court –

(a) correspondence (including letters of instruction to experts);

(b) medical records (including hospital, GP and health visitor records);

(c) bank and credit card statements and other financial records;

(g) police disclosure.

And paragraph 5.1 sets a limit of 350 single-sided pages on the size of the bundle:

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

Those rules have, at least, the merit of clarity. But the seismic shift in professional practice that they seek to create has not yet happened. In the recent case of Re L (A Child) [2015] EWFC 15 the President said that the rules were “routinely ignored” and that compliance with them was “fitful”. My own experience is that few lawyers have previously even paid them lip service.

Judicial wrath

The President and other High Court judges have clearly had enough. In J v J [2014] EWHC 3654 (Fam) Mostyn J. found himself faced with 8 lever arch files containing a total of over 2,000 pages. In addition to inveighing against excessive costs in his judgment, he said this (at para 52):

“The failure by both sides to comply with PD27A for the hearing on 1 October was very wrong. It was wrong for them to persuade the plainly embattled Judge Bancroft to allow them to carry on with their default before me. It must never happen again. If this requires a culture change in the way practices are run then so be it. I recall that in his minatory and mordant judgment of Re X and Y (Bundles) [2008] EWHC 2058 (Fam) [2008] 2 FLR 2053 Munby J threatened practitioners who defied the then practice direction about bundles with dire consequences. Since then the practice direction has been incorporated within the FPR and reissued on 10 April 2014 in its current form incorporating the one bundle rule. But routinely the profession pays no attention to it. Again, it is no use the courts feebly issuing empty threats. I intend to draw this also to the President’s attention with a view to him raising this further pressing matter as a matter of urgency with the Family Procedure Rules Committee. Perhaps it will be necessary for him to set up a special court before which delinquents will be summoned to explain themselves in open court, just as delinquent practitioners in the Administrative Court are summoned before the President of the Queen’s Bench Division pursuant to the decision in R (on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin). Perhaps such a court would regularly consider whether to disallow fees pursuant to CPR 44.11(1)(b) and/or section 51(6) Senior Courts Act 1981.”

As that passage makes clear, he suggested that the remedy for breaches of the rules might be to haul delinquent practitioners into open court for at least a judicial dressing down, if not a wasted costs order. The proposed practice set out by the Lord Chief Justice in Hamid was that for future breaches “the court will require the attendance in open court of the solicitor from the firm who was responsible, together with his senior partner. It will list not only the name of the case but the firm concerned.” So it is clear that Mostyn J. had solicitors in mind.

In addition to all this, Mostyn J. criticised a popular method of circumventing the limit on bundle size, namely agreeing a single ‘core’ bundle and having multiple volumes of secondary material available for use if necessary.

That case was followed by Seagrove v Sullivan [2014] EWHC 4110 (Fam), which was a case involving consolidated proceedings under TOLATA and Schedule 1 of the Children Act 1989. Holman J. found himself faced with bundles containing 3,500 pages and 32 legal authorities. In addition to criticising the parties’ “disproportionate”’ £1.3m legal costs he took robust action because, in his view, the lawyers had not adhered to Practice Directions limiting the size of court bundles and the number of authorities that could be cited. He rejected arguments that the materials were required because the consolidated proceedings were complex. The penalty he imposed was to direct the parties to remove the papers from court, and return the following day with a composite bundle containing 350 pages. In the event, settlement was reached overnight.

Those two cases were, however, mere harbingers of the President’s recent judgment in Re L (A Child) [2015] EWFC 15. In that case the President sent out a very strong warning about not complying with Practice Direction 27A and the likely consequences of failing to comply with it in the future. He endorsed Mostyn J’s suggestion that non-compliant practitioners risked being named and shamed, and he made clear that, in addition, a costs order could be made against them and the hearing being adjourned (as Holman J. had done in Seagrove v. Sullivan). He even suggested that if non-compliance continued, a ‘special delinquent court’ might be set up.

What this means in practice

In practice, this means that practitioners (particularly solicitors) will, in future, have to comply with Practice Direction 27A. That is likely to affect not just cases in the High Court but in all parts of the Family Court as well.

In particular, the President in Re L was aiming at 3 things:

  • The 350 page limit on size (unless you have the prior permission of the court)
  • That pages must be printed on one side only
  • That only the judge’s bundle must be delivered to the court before the day of the hearing; all other bundles (such as the witness bundle) must be brought to court on the day of the hearing.

None of that will be particularly difficult in a simple financial remedies case in which, for instance, there is no expert report on the value of company shares or pension sharing. But in more complex cases it is likely to be far harder to stick to the 350 page limit.

In any event, what all this means is that solicitors will have to begin preparing court bundles much earlier than they have done until now. It will now be necessary to consider what should go into the bundle several weeks before the hearing, and that will have to be negotiated and agreed with the other side, bearing in mind throughout that the 350 pages (which includes Skeleton Arguments) must not be exceeded. It is not difficult to foresee that this will cause difficulties, particularly if you are doing battle with a difficult opponent or a litigant in person who insists on particular documents going in to the bundle when their addition will take the bundle over the magic limit. In those circumstances, you may have to apply to the court either for a ruling on what should be inserted or omitted or for permission to exceed the limit; so you will need to have allowed sufficient time in your preparations for that to happen.

There are two ironies in all this. First, none of this applies to cases in which all the parties are acting as in person, for, as paragraph 3.1 of the Practice Direction says:

Where all the parties are litigants in person none of them shall, unless the court otherwise directs, be obliged to provide a bundle, but any bundle which they choose to lodge must be prepared and lodged so as to comply with this practice direction.

Secondly, for we lawyers, complying with all these rules inevitably adds an additional burden to the process of family litigation. And it is one that will, almost certainly, add to its cost.

Litigants in Person: Problems and Law

It is probably fair to say that most lawyers – and quite a few judges – are uncomfortable dealing with Litigants in Person (‘LiPs’). That is not solely because they are so often a loose cannon in the legal process: they often have a limited understanding of procedural rules and legal principle; and, in family cases especially, they have a strong emotional attachment to their case, which can result in a subjective assessment of their claim and a reluctance to settle. All too often they break the rules and – unlike lawyers – get away with it. To make matters worse, it is the  lawyer who has to produce the bundles and the authorities, and guide the LiP.

As we all know, the number of LiPs has mushroomed since the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’) came into force on 1st April 2013 – because, as a result of that legislation many fewer people are eligible for Legal Aid and so have no real choice but to represent themselves. So the problems they cause, not just for themselves but for lawyers and the legal system as well, seem likely to get worse.

There’s very little literature out there to guide lawyers in their dealings with LiPs. So here are some guidelines which I hope will be useful both for lawyers and LiPs.


Do the rules apply to LiPs?

The first apparent problem is the leniency which some judges show to LiPs when they break procedural rules or just simply don’t know the law. Put bluntly, it often appears as though some judges think that the rules apply to lawyers but not to LiPs. It remains to be seen whether that becomes worse or better in the wake of the recent Mitchell v. News Group Newspapers [1] .

Even before Mitchell, however, that leniency had its limits, as Tinkler v. Elliott[2] demonstrated. That arose out of a long-running series of cases which followed Mr Elliott’s dismissal as a helicopter pilot by a company of which Mr Tinkler was the chairman. Mr Elliott failed to appear at the trial and judgment was entered against him. Some 20 months later he applied as an LiP to set that aside on the basis that he had been unable to attend the trial through illness. The first instance judge allowed his application, but the Court of Appeal reversed that on the grounds that he had not applied promptly. Maurice Kay LJ said[3]:

“I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person ‘did not really understand’ or ‘did not appreciate’ the procedural courses open to him for months does not entitle him to extra indulgence. “


Experts, bundles etc

The second problem is who should organise and pay for things like the preparation of bundles and obtaining expert evidence – matters which are often essential to a case or at least to the smooth and efficient running of a trial. Patten LJ commented on this in the Court of Appeal in the children’s case of Re A (Prohibited Steps Order)[4]:

“The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person).”

Practice Direction 27A of the Family Procedure Rules 2010 provides (at paragraph 3.1) that if the applicant is an LiP the first Respondent who is legally represented has to prepare the bundle, but if all of the parties are LiPs none of them is obliged to provide a bundle unless the court directs otherwise.

The sort of problem that creates was commented on by Black LJ in the recent case of Re R (A Child)[5]:

“[6] This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.”

The problems caused by LiPs in courts at first instance are just as difficult.

Following a hearing courts often ask the lawyer to draw up the order and to agree it with the LiP. That is often difficult and, with an argumentative LiP, can be impossible. My own practice is to tell the judge that I will draw up the order and then show it to the LiP but that I cannot promise to agree it with them, thereby leaving it up to the judge to decide whether or not my draft accurately reflects the orders he/she has made – a practice with which judges invariably agree. The forthcoming publication of the standard precedents for family orders (the ‘Mostyn precedents’ as they have become known) will at least make it easier for judges to prepare their own orders from the precedents.


Evidence and Submissions

Another difficulty is that LiPs do not understand the distinction between evidence and submissions. As a result, many do not give all their evidence when they are in the witness box, but instead make allegations in their submissions. One answer to this was given by Rider LJ in the recent case of Re H (A Child)[6] where he said[7]:

“For my part, I would strongly suggest that in future, in an environment in which litigants in person are now the rule rather than the exception, a judge should have each party sworn or affirmed before they make submissions so that there is formal evidence on the record from that person and also that it is explained to each litigant in person by the judge that they can ask questions if necessary through the judge who will then decide whether the question is appropriate, for example, on the grounds of relevance.”

That does not, though, provide a solution to the problem caused by LiPs making new allegations in their closing submissions – by which time, of course, opportunities for re-opening cross-examination are often unrealistic.


The lawyer’s duties to an LiP

That is not the only duty that falls on the lawyer facing an LiP. The Admiralty and Commercial Court Guide states that “where a litigant in person is involved in a case the court will expect solicitors and counsel for other parties to do what they reasonably can to ensure that he has a fair opportunity to prepare and put his case”. Though there is nothing to that effect in the FPR or its Practice Directions, one suspects that most family judges would have the same expectations.

In any event, solicitors have professional duties to help LiPs. The SRA Code 2011 contains these ‘Indicative Behaviours’: 11.7 states that a solicitor should not take ‘unfair advantage’ of an opposing party’s lack of legal knowledge where they have not instructed a solicitor; and 11.9 states that solicitors should not use their professional status or qualification to take ‘unfair advantage’ of another individual in order to advance their client’s interests. Taking ‘unfair advantage’ refers to behaviour that any reasonable solicitor would regard as wrong and improper. The Code suggests that might include:

  • bullying and unjustifiable threats;
  • misleading or deceitful behaviour;
  • claiming what cannot be properly claimed;
  • demanding what cannot properly be demanded.

The Law Society’s Guidance[8] suggests occasions when it may be appropriate to assist an LiP.

The Bar’s Code of Conduct does not specifically contain anything similar (though Rule 1 of Sections D1 and D2 contains rules about barristers’ behaviour towards the court and others which would also apply in relation to LiPs).


McKenzie Friends

Of course, many LiPs are assisted by McKenzie Friends, who are either unpaid relatives or friends, or professional, paid ones. This is a subject which deserves an essay of its own. For the present, though, it is enough, I hope, to be remind you of the current guidance, President’s Guidance: McKenzie Friends[9].



Subject, of course, to the ‘no order’ principle in FPR rule 28.3, LiPs can be awarded costs in appropriate cases. They can either be awarded a maximum of :

  • Two-third of the amount which would have been allowed if litigation had been conducted by a legal representative[10], if, but only if, they can prove financial loss; or
  • If they do not prove that they have suffered financial loss, £18.00 per hour[11].

‘Financial loss’ in this context means loss of earnings, whether the litigant in person is employed or self-employed. The burden is on the LiP to prove that loss. In addition, he is required to produce to the court and serve on the other party any written evidence upon which he relies to support the claim for financial loss at least 24 hours before the hearing at which the question may be decided[12]. However, it appears that duty will not be imposed too severely. In Joseph v Boyd and Hutchinson[13] the court considered that it should adopt a broad brush approach in circumstances where the work was done during hours when the LiP was available for work. It was not necessary to enquire to any great extent as to whether they would have been engaged on other business, but the LiP must show that he would have been gainfully employed and also how much would have been earned.

There are 2 competing authorities as to how much time should be allowed to an LiP to prepare his case. In Mealing McLeod v Common Professional Examining Board[14] it was held that CPR rule 46.5(4) suggested that more time should be allowed to a litigant in person than to a solicitor doing the same task. However, in Greville v Sprake[15] the Court of Appeal, without referring to Mealing-McLeod, held that a litigant in person is limited to the time which would reasonably have been spent by a solicitor on the preparation of his or her case based on CPR rule 46.6(3)(a).

An LiP can, in addition, claim disbursements in full if they have been reasonably incurred. Those can include payments reasonably made by him for legal services relating to the conduct of the proceedings; and the costs of obtaining expert assistance in connection with assessing the claim for costs[16] — but if those are claimed the court (and the paying party) will require full details of the work undertaken by the legal representatives and the way in which the disbursement claimed has been calculated. They cannot, however, include notional disbursements such as counsel’s fees where counsel was not instructed[17].

Of course, the principle of proportionality applies just as much to LiPs as it does to parties who are represented by lawyers[18].

If the legally represented party is claiming costs the requirement of proportionality does not mean that the costs of a legally represented party must be reduced below a reasonable level of remuneration because the other side is a litigant in person restricted to payment of £18 per hour[19].



It is clear that, in the current legal landscape, there will be many more LiPs than previously, and both LiPs and lawyers are going to have to cope with that. Undoubtedly, that will place significant burdens on people having to represent themselves in forums with which they are unfamiliar; but it will also place lawyers in difficult situations, saddled increasingly with additional burdens and responsibilities.

[1] [2013] EWCA Civ 1537, [2014] 1 WLR 795, [2014] 2 All ER 430: A case which, for civil lawyers, marked a noticeable tightening of judicial enforcement of directions, so that even minor failures to comply with court orders have resulted in cases being struck out

[2] [2012] EWCA Civ 1289, [2013] C.P. Rep. 4

[3] At para 32

[4] [2013] EWCA Civ 1115 [2014] 1 FLR 643

[5] [2014] EWCA Civ 597

[6] [2014] EWCA Civ 271, CA

[7] At para 18

[8] https://www.lawsociety.org.uk/advice/practice-notes/litigants-in-person/#lip21

[9] [2008] 2 FLR 110

[10] CPR r.46.5(2) (applied by FPR 2010 Part 28)

[11] CPR Practice Direction 46 para 3.4 (applied by FPR 2010 Part 28)

[12] CPR Practice Direction 46 para 3.2

[13] [2003] EWHC 413

[14] (SCCO No 7 of 2000), [2000] All ER (D) 436

[15] [2001] EWCA Civ 234, [2001] All ER (D) 182 (Feb)

[16] CPR r.46.5(3)(b) and (c))

[17] Hart v Aga Khan Foundation (UK) [1984] 2 All ER 439

[18] Grand v. Gill [2011] EWCA Civ 902

[19] Mealing McLeod v Common Professional Examining Board (SCCO No 7 of 2000), [2000] All ER (D) 436.