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.

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