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The Devil in the Detail: The Court Bundles Practice Direction and J v J [2014] EWHC 3654

Alexander Chandler, barrister at 1 King’s Bench Walk considers the Implications of the Court Bundles Practice Direction in the light of Mostyn J’s judgment in J v J [2014] EWHC 3654















Alexander Chandler
 barrister, 1 King's Bench Walk

"We stand on the cusp of history. 22 April 2014 saw the formal implementation of the largest reform of the family justice system any of us have seen or will see in our professional lifetimes… the Family Court came into existence and the Family Proceedings Court passed into history… [With the] implementation in private law children cases of the Child Arrangements Programme Taken as a whole, these reforms amount to a revolution. Central to this revolution has been – has had to be – a fundamental change in the cultures of the family courts. This is truly a cultural revolution…"

Sir James Munby, "The Family Justice Reforms"


PD 27A ("Family Proceedings: Court Bundles (Universal Practice…")

With so much happening on 22 April 2014 (or 'Year Zero' as future legal historians may describe it) it was easy to overlook the coming into force of a revised Practice Direction dealing with court bundles.

At first glance, the new Practice Direction 27A seemed little changed from its predecessor save that:

1) It was now obligatory to prepare a paginated court bundle for all hearings, whereas previously hearings of 1 hour or less outside the High Court had been exempt (PD 27A, para. 2.1); and

2) There was, in force from 31 July 2014, a new provision that "…unless the court has specifically directed otherwise" the bundle should contain no more than 350 pages (PD 27A, para. 5.1).

Six weeks later, on 5 June 2014, Mr Justice Mostyn handed down guidance in High Court financial remedy claims 1 which stated that the court bundle must "…scrupulously comply with FPR PD 27A" 2 and that the 350 page limit included preliminary documents and skeleton arguments.

Practitioners might have assumed that, this being family law, the latter requirement would be more honoured in the breach than in the observance.  If so, they will do well to read the judgment of Mostyn J in J v J [2014] EWHC 3654 (Fam), in particular from para. 47 onwards, relating to court bundles.


J v J [2014] EWHC 3654 and the consequences of 'circumventing' PD27A
This case has attracted some Press attention 3 in respect of the total costs incurred (the "grotesque leaching"  4 of costs totalling £920,000 in a case originally involving assets of £2.9m), and Mostyn J's suggestion that "…we must now look to fixed pricing and judicial costs capping" (para. 14).
What is perhaps more noteworthy for the profession is the court's condemnation of the parties' failures to comply with PD27A.

The final hearing in J v J was originally listed to take place on 1 October 2014 before Her Honour Judge Bancroft at the Family Court in Manchester. In the event, the time estimate proved inadequate and the case, which involved numerous experts and serious allegations of litigation misconduct, was transferred to the High Court with a seven day estimate. Judge Bancroft excused the parties from preparing new court bundles that would have complied with PD 27A on the ground of proportionality. Instead the parties were permitted to adduce an "essential reading bundle", four "core" lever arch files with a number of other bundles containing supporting documentation", making a total by the time of the adjourned hearing of twelve 5

In his judgment, Mostyn J was little short of scathing of this departure from the presumption that there should be a single court bundle limited to 350 pages:

"[50] I do not know for whom compliance with PD27A para 5.1 would be "disproportionate". Certainly not for the court and, in view of the waste caused by the deployment of so many files, not for the parties. Ultimately I think that what this language meant was that it would be just too much bother for busy barristers and solicitors to have to sit down and actually work out what were the relevant documents to be inserted in the single bundle."

[51]to look at them [the 12 trial bundles] (sometimes many times) it was necessary in each instance for a file to be taken up, opened, put away (and so on) by me, the lawyers and the witness. The waste of time was simply prodigious. The entire archive had to be taken to and fro. It was all totally unnecessary where all of the documents used in this case could have comfortably fitted in one file in compliance with the one bundle rule. I do not accept that the demands of a busy practice are a justifiable excuse for a contemptuous disregard of the rule. Nor do I accept the argument, which I have heard, that it is unfair for an applicant to have to identify her "killer" documents by placing them in the single bundle in circumstances where non-disclosure is rife and where confrontation with a document buried deep in (say) File 19 will expose dishonesty. This is, with respect, an absurd argument. If the killer document exposes fraud let it be shown at the earliest opportunity so that a settlement might be achieved. This argument smacks of playing games. I also deprecate a practice of circumvention of which I have become aware. That is for the lawyers for both sides to agree a single "core" bundle and, in addition, an archive of many volumes of expensively prepared secondary or background material. This archive is then brought to trial in the confident belief and expectation that the trial judge will grant permission pursuant to PD27A para 5.1 at the final hearing itself to use documents from the archive. This is no better than the old regime which the new prescription was designed to stamp out. Para 5.1 expects that a direction for permission to use more than one bundle is obtained before, not at, the final hearing. It is possible, of course, that, unexpectedly, further documents may be need to be deployed at the final hearing; but the starting point, and the usual finishing point must be that all the relevant documents should be in the single bundle. To describe the single bundle as the "core" bundle suggests that there will inevitably be other documents in further bundles outlying the core. That is the wrong approach.

[52]
The failure by both sides to comply with PD27A for the hearing on 1 October was very wrong… 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) Munby J threatened practitioners who defied the then practice direction about bundles with dire consequences… 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…" (my use of underlining)

Click here for a full summary of the decision in J v J written by Katy Chokowry and for the full text of Mostyn J's judgment.


The single Family Court and the single court bundle
The most difficult requirement of PD 27A is contained at para. 5.1 which provides that "…unless the court has specifically directed otherwise", the court bundle must not exceed 350 pages 6.

Unlike many provisions in the Family Procedure Rules 2010 and its accompanying Practice Directions, there is no similar counterpart or restriction in the Civil Procedure Rules 1998. In fact, para. 3.6 of CPR PD 39A, adopts a similar approach to that which was so strongly criticised in J v J:

"The bundle should normally be contained in a ring binder or lever arch file. Where more than one bundle is supplied, they should be clearly distinguishable, for example, by different colours or letters. If there are numerous bundles, a core bundle should be prepared containing the core documents essential to the proceedings, with references to the supplementary documents in the other bundles".

The magic number of 350 pages (which appears to have been calibrated against the number of pages which can safely be inserted into a lever arch file without it collapsing 7) will in every financial remedy case be whittled down by roughly a third to accommodate the following standard documents, all of which have inflated in length post 22 April 2014:

- The new Form A, which is now 12 pages long;

- A basic Form E is 27 pages (i.e. a minimum of 54 pages for the parties, without any additional pages or annexes)

- Standard directions orders for FDA and FDR which are notably longer than orders based on older precedents;

- Inclusion of the compendious Preliminary Documents which now must be filed (see below) in the total of 350 pages.

More complicated cases involve a greater amount of paperwork and documents which must be included (thereby using up the allotted 350 pages), e.g. narrative statements and expert reports, leaving little space for primary documentation such as bank statements or company accounts.

A direction for permission
At para. 51 in J v J, Mostyn J stated, "Para 5.1 [of PD 27A] expects that a direction for permission to use more than one bundle is obtained before, not at, the final hearing". For cases outside the High Court (where pre-trial reviews are the exception rather than the norm), this would normally be at the end of a Financial Dispute Resolution appointment.

The requirement to seek the court's permission (a) to adduce the documentation normally excluded at PD 25A para 4.1 and/ or (b) to prepare a trial bundle greater than 350 pages (PD 25A para. 5.1) raises several issues and practical problems which will need to be ironed out:

a) Firstly, is the court being asked to consider blanket permission to breach the 350 page limit (e.g. "…the parties may file a bundle in excess of 350 pages") or to exercise a more specific discretion (e.g. "…the bundle may exceed 350 pages in order to accommodate the following company accounts/ bank statements"). Bearing in mind that the parties in J v J were roundly condemned despite having obtained the court's permission to lodge PD non-compliant trial bundles in advance, it appears to be Mostyn J's view that the court should take the latter approach and be specific as to the contents of a bundle if it grants permission;

b) Secondly, if the issue is to be determined in advance of a final hearing, this may be at a time when the evidence is incomplete (i.e. before updating disclosure has taken place and before narrative statements have been exchanged). As Mostyn J acknowledges in J v J at para. 51, "It is possible, of course, that, unexpectedly, further documents may be need to be deployed at the final hearing", which may in some cases require that the question of the trial bundle is reconsidered shortly before the final hearing and in some circumstances on the morning of the final hearing with the attendant problems and loss of court time that may follow;

c) Thirdly, anyone who has conducted a final hearing will know there is often an element of unpredictability. Witnesses give unexpected answers; documents come to light during a hearing, which may transform the significance of bank statements or a director's loan account. If this possibility has not been anticipated, the documents may not be present in the court bundle by a combination of PD 27A paras. 4.1 and 5.1;

d) Fourthly, how is the court meant to exercise its quasi-inquisitorial function in circumstances where (1) one or both parties are litigants in person and have not been aware of the need to make an application under PD 27A para 5.1 and/ or (2) where there has been a late change of position before a final hearing, which may involve the presentation of new information such as property particulars. If the bundle has reached its 350 page limit and neither party has applied for an extension, should the court refuse a late application to allow these documents or will it determine the issue not on 'necessity' but on the overriding objective at FPR Part 1.1?

e) Fifthly, if the judge who determines an application under PD 27A para 5.1 is the FDR judge (which is likely to be the case in many applications), further problems arise:

i) By definition, the FDR judge cannot be the trial judge 8, but can make directions which restrict the documentation included in the trial bundle, and which may cut off avenues which the trial judge would wish to explore;

ii) Since a bundle prepared for a FDR should only include those documents relevant for the hearing, an application under PD para. 4.1 and/ or 5.1 may require the court to adjudicate on documents which are not before him 9, without additional time allotted (unless the practice were to emerge that a FDR listing is increased from 1 hour to cater for the possibility of argument over the content of trial bundle). 

f) Sixthly, Mostyn J makes reference to the Jackson Reforms in civil litigation but does not remark on the unintended consequences of tightening up civil procedure which, post Mitchell v News Group Newspapers [2013] EWCA Civ 1537, led to a flurry of litigation as parties took a more exacting approach. In Denton, Decadent and Utilise [2014] EWCA Civ 906 the Court of Appeal noted that: "…justifiable concern has been expressed by the legal profession about the satellite litigation and the non-cooperation between lawyers that Mitchell has generated" (Lord Dyson MR, para 39). It is conceivable that a party who would prefer to keep embarrassing credit card and bank statements out of a trial bundle may pray in aid PD 27A paras 4.1 and 5.1 (i.e. that it is not "necessary" for a trial bundle to be extended beyond 350 pages to include them).

g) Finally, as a matter of principle, while appreciating the importance of efficient case management, why should a party have to meet the same high threshold as applies with the instruction of an expert ("necessary" 10) in order to put before the court a bundle exceeding 350 pages, to ensure that documents that have already been exchanged and filed are placed before the court at a final hearing? For example, where a party wishes to argue for a modest add-back (which would involve tracing through several dozen bank statements from various accounts), who is to say if that argument is 'necessary'?


Complying with 27A: A step by step guide in financial remedy cases
In order to guard against the risk of wasted costs orders or being summoned as a 'delinquent' to explain themselves in open court, what should practitioners do?

1. When is a bundle required?
All cases save for urgent applications "to the extent that it is impossible to comply with it [PD 27A]"

2. Who prepares the court bundle?
The party 'in the position of applicant at the hearing', or, where that person is a litigant in person, the first listed respondent who is represented (PD 27A, para. 4.1)

3. Timetable for preparing the bundle at any hearing
Hearing – 4 days: Draft index circulated (PD 27A, para. 6.1)
Hearing – 3 days: Papers delivered to counsel (PD 27A, para. 6.2)
Hearing – 2 days: Court bundle lodged (PD 27A, para. 6.3)
Hearing – 1 day: Preliminary documents lodged (11 am) (PD 27A, para. 6.4)

4. Contents of the bundle
The bundle shall "if reasonably practicable" be agreed (PD 27A, para. 4.7(b) and, where should explain if the bundle is "limited or incomplete" (PD 27A, para. 4.7(a)).

Unless there are "specific documents which it is necessary for the judge to read or which will actually be referred to during the hearing, the bundle must expressly not include "correspondence" or "…bank and credit card statements and other financial records (PD 27A, para. 4.1(a) and (c))

All of the preliminary documents must now be copied on one side of paper and printed "...in a font no smaller than 12 point with 1 ½ or double spacing" (PD 27A, 5.2). The spine of the bundle must have, clearly marked, the details of the case including, if known, the identity of the judge (PD 27A, para. 5.3)

5. Arrangement and numbering of bundle
The bundle to be paginated with Arabic numbering throughout (PD 27A para. 3.2 and 4.2, i.e. no Egyptian hieroglyphs). The bundle indexed and divided into the familiar sections (i.e. A: Preliminary Documents; B: Applications and Orders; C: Statements and Affidavits; D: Expert reports; E: Other), which should be arranged chronologically (PD27A, para 5.2).

All documents must be copied on one side of paper only unless the court has specifically directed otherwise.

6. Preliminary documents (not final hearings)
The preliminary documents, which should be bespoke for the specific hearing, must be "…as short and succinct as possible", cross-referenced against the bundle, and must identify on the first page "when it was prepared and the date of the hearing for which it was prepared" (PD 27A, para. 4.4).

The documents should comprise (whether as separate documents or one composite document) the following:

(1) an up to date case summary "confined to those matters which are relevant to the hearing" and limited, if practicable to four A4 pages (PD 27A, para. 4.3(a) which should,

(2) a statement of issues to be determined (a) at that hearing and (b) at the final hearing;

(3) an up to date chronology unless the case summary is sufficient

(4) a list of essential reading

All of the above (i.e. items (1) to (4)) shall, 'so far as practicable' consist of a single agreed document or a single document containing the parties differing contentions; and in addition

(5) a position statement by each party including a summary of orders/ directions sought;

(6) skeleton arguments, where appropriate

(7) a time estimate specifying judicial pre-reading, time for evidence and submission and judgment (PD 27A, para 10.1)

7. Preliminary documents (final hearing)
As above save that "summary of the background, statement of issues, chronology and reading list" (i.e. items (1) to (4) above) shall (i.e. must) be agreed as a single document which, where there is disagreement, contain differing contentions marked on the document (PD27A para 4.6).

Generally as to the content and length of the trial bundle, see above.

8. Return and re-lodging of bundle
"Unless either the court wishes to retain the bundle or specific alternative arrangements have been agreed with the court", the bundle must be returned end of hearing (PD 27A, para. 9.1). For the next hearing, this should be updated with all superseded documents (e.g. old case summaries, chronologies etc.) removed (PD 27A, para. 4.8(b)

9. Penalties for non-compliance
Wasted costs (PD 27A, para. 12.1; also see Re X and Y (Bundles) [2008] EWHC 2058, para. 18), potentially exposure in open court (see J v J, para. 52)

17 November 2014
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1
"Statement on the efficient conduct of financial remedy final hearings allocated to be heard by a High Court Judge whether sitting at the Royal Courts of Justice or elsewhere" http://www.judiciary.gov.uk/wp-content/uploads/2014/08/report-of-the-financial-remedies-working-grp-annex3.pdf 
2 Para 8 of bundle
3 http://www.theguardian.com/lifeandstyle/2014/nov/13/divorce-costs-of-nearly-1m-scandalous-says-judge, http://www.telegraph.co.uk/women/sex/divorce/11226379/Couple-rack-up-legal-bills-of-nearly-1m-fighting-divorce-battle-over-assets-worth-just-2.9m.html 
4 J v J, para. 16
5 J v J, para 49, 50
6 See President's Practice Direction of July 2006 (Family Proceedings: Court Bundles) (2006) 2 FLR 199
7 Cf. Chancery Guide, Appendix 6, para. 14 "No bundle should contain more than 300 pages."
8 Save in respect of conducting a further FDR or making further directions: Family Procedure Rules 2010, Part 9.17(2)
9 The FDR bundle will generally exclude such documentation unless it is to be specifically referred to at that hearing (i.e. the FDR, not the final hearing) (PD 27A, para 3.1) and the court file may not include Form E attachments or replies to questionnaire;
10 As to the definition of which, see Re H-L (A child) [2013] EWCA Civ 655 at [3] "The short answer is that 'necessary' means necessary"