Thursday, September 18, 2008

In re X and Y (Bundles): A warning

I've been meaning to comment upon the case of In re X and Y (Bundles) [2008] EWHC 2058 (Fam) that was reported last month. I've posted before about the delights of preparing court bundles, and now Mr Justice Munby has issued a stern warning to the profession about the possible consequences of failure to comply with the 2006 Practice Direction.

Clearly frustrated by the "continuing failure" of the profession to comply, Mr Justice Munby explains 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 ... to undertake a workload, much of it in their own time, which even their comparatively recent judicial ancestors would have found astonishing". Without naming names, he cites two cases of non-compliance, one in which "experienced family solicitors whose notepaper is festooned with the logos of virtually every relevant family law professional body or association" had prepared a bundle that was "lamentably deficient", and the other in which the bundle (also deficient) had been delivered to the court at 10.20 on the morning of the hearing, resulting in the hearing having to be adjourned.

Mr Justice Munby then sets out the possible sanctions for failure to comply with the Practice Direction, including orders for costs against the party in default or against the defaulting lawyers, having the case put back to the end of the list or adjourned, or, in "particularly egregious cases, defaulters may find themselves publicly identified in judgments delivered in open court". He finishes with the warning:

"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."

Obviously, the profession would be well advised to heed the warning, although preparing a bundle is an onerous task, and expensive for the client. I recently spent a lot of time preparing a bundle for a final ancillary relief hearing, only to have the matter settle at the last minute. I wasn't amused.

17 comments:

  1. Rather than blathering about these sorts of things, a few wasted costs orders would quickly restore good order.

    Behind this is a practice management issue for the solicitors acting. If you can leave things to the last minute, without sanction, it is more likely to happen.

    If the judge calls someone to account, the person he needs is the senior family partner. And that partner will find eating humble pie and nominally accepting responsibility while not missing the chance to mention that the assistant involved "is no longer with my firm" a damn sight easier to endure than a dent in the year end profits.

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  2. You're probably right. It is certainly annoying to see other firms get away with incomplete or late bundles, when you work hard yourself to do it properly and on time.

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  3. I'm with Wuill to a point - yes the person to call to account is the Family Senior partner. But that is becasuse it is often their fault - in fact if you think about it in terms of supervision it is their fault.

    Too often bundle prpe is left to the junior member of staff - the trainee for instance - who hasn't been shown what to do. The more senior members of staff see it as an administrative job and beneath them. That's how these problems often arise.

    However there go I but for the grace of God (er perhaps I should not have said this on this site!!!)

    Paul

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  4. ..sorry about my ham fisted two finger typing - a mixed metaphor to be sure.

    Typos, typos, typos...

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  5. I'm sure you're right about delegation, although some of the documents really need to be prepared by the fee earner having conduct of the matter (or counsel, if instructed). Of course the buck stops with the person doing the delegating.

    You can mention God here, but now you'll have to do a penance of 3 Hail Richards (Dawkins, that is)! ;-)

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  6. "Hail Richard, full of ..."

    Don't start me.

    Paul

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  7. Another reason for pre nups I'd say.

    I do also say the comment about solicitors leaving everything until the last minute without sanction does seem to happen quite a lot.

    Why can't they make 'that' phonecall towards the beginning, rather then 2 minutes before (or after) Baristers are due to be instructed for final hearing. I'm with the Judge on this, sorry John, as James Plaskitt said to me recently, a broad brush approach will have some issues.

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  8. No need to apologise - I'm with the judge too.

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  9. Rather than the traditional method of photocopying, paginating by hand and copying again, I have since setting up Alternative Family Law 3 1/2 years ago (and being on my own for the first year without any support) used Adobe Acrobat - no, not the free reader, but the Standard version at £275 plus VAT.

    You need a good scanner - most modern copiers will have this function if networked. Then the documents can be scanned in as you go along, or as a section, put together section by section and once a section has been put together, the programme puts page numbers (A1, A2 etc. or B1, B2) in for you. You can then print as many copies as you want through the copier without losing quality, plus you can add pages later on. You only need to paginate just before printing, which also means that if you decide that a page in the middle is missing, you can insert it and repaginate. It is really easy and enormously time-consuming. Also as a senior person I can check the bundle on screen to ensure everything is in.

    I highly recommend it!

    Andrea

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  10. I wonder to what extent "mistakes" in bundles are always simply clerical errors. As a LIP I was appalled at the bundle produced for my last hearing - e.g. the annexes to my statement being put (without mention in the index) amongst the CAFCASS reports. How the judge could ever be expected to find them at the time he needed them (i.e. when reading my statement) is beyond me.
    Of course, this was all very much in their client's interests ....

    Not that I'm bitter and twisted at all, you understand!

    STH

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  11. Hi STH,

    I suspect that this was just ineptitude rather than design, as the judge would direct his/her ire at whoever was responsible for preparing the bundle, and this would obviously be unhelpful for their client. Still, makes you think...

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  12. Hi John,

    of course this might have been ineptitude, as might have been the refusal to include in the bundle any of the documents I requested which reflected badly on her client, and of course her refusal to try to come to any agreement about the content of the preliminary documents for the bundle (despite the President's Direction) may just have been that
    she was pushed for time.

    It's one thing, in a family court hearing about children, to present your client's case in the best possible light, but at what point is interfering in the fairness of such a hearing unacceptable?

    STH

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  13. That, of course, is a matter for the court to decide.

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  14. Fairness in Family Court. Good on the Judge, a novel concept, and in my experience they prefer to sleep and not read these things.

    More of the same, about time the Judges penalised all the smoke and mirrors which lawyers use to back difficult cases.

    I applaud him, more of the same please. Transparancy is good, may be too late for them, but with a few good new laws and more judges who care, like this one, people wouldhave some faith in these courts which they don't seem to at the moment. Yes, publish more outcomes, if not open them up completely too.

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  15. As a Deputy DJ sitting in the West Midlands I find this happening all the time. It makes things very difficult, especially as I don't feel I have the 'clout' to make solicitors pay the costs of an adjourned hearing. We're presssed not to be 'pernickety' and to 'get on' with the case

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  16. Many thanks for that. I won't say I'm perfect, but the state of the bundles I receive from other solicitors often leaves a lot to be desired...

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