Practice Direction 27A (Family Proceedings: Court Bundles (Universal practice to be applied in the High Court and Family Court) bought into force a new limiting provision for court bundles(para5.1):
“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.”
Given that this provision has been in force since 31st July 2014, why mention this now? The answer is found in two recent cases, which highlight the changing nature of family cases and emphasise a need to consider, at each stage, what permission is required by the court. It should be noted that the cases referred to are in relation to care proceedings, but the guidance is relevant in all family proceedings.
Re L  EWFC 15
The President was not at all surprised to find that PD27A was not being complied with, and this certainly is my experience in practice. Practitioners should remind themselves that if the proceedings can not be justly disposed of in 350 pages, a direction must be sought to permit exceeding this limit; this is now more than ever, important to implement. Munby P, has given clear warning that breach of PD27A will not be tolerated and has stated that from now on:
Munby P stated that if this final wake up call does not improve matters then he will consider setting up the special delinquents court (summoning those who breach the provisions to explain themselves in open court) suggested by Mostyn J in J v J.
Of particular note, is that there is no concept of a “core bundle” without judicial direction; parties are to comply with the practice direction and provide one bundle not exceeding 350 pages of A4.
In addition parties are to bring the witness bundle to court (for any hearing where oral evidence may be given) and not lodge it. The president has instructed that counter staff and court staff will not accept additional bundles; they will not be brought into court and may be destroyed without warning. The bundles lodged for each hearing shall only contain the documents relevant to that particular hearing and as necessary for the court to read or which will be referred to during the hearing. Specifically, a direction is required from the judge for certain classes of documents, including medical records, bank statements, contact notes, social services files and police disclosure.
In practice many bundles contain a mass of documents from these classes of documents and there seems to be great regional variation as to the compliance with this provision. For example in some, but certainly not all areas for FDR hearings, bundles contain the Form E, questionnaires and responses only, and not the attachments, where as in other districts, Courts have even issued “local practice directions” negating the need for any bundles at all!
Given the president’s strict warning, it appears that PD27A will now need to be applied in all areas. As another example, I can recall very few Children Act cases, whether private or public law, where the trial bundle has not simply been produced for every hearing. This will need to change and we will all need to be live to this issue, or face criticism and sanction as outlined in Re L.
A further practical consideration is how do we ensure that all necessary evidence is before the court within 350 pages in cases where numerous statements and reports are required? The president is clear that documents need to be as short and succinct as possible. In Munby P’s third View from the President’s Chambers:  Fam Law 816 at 820, he expressed that it was acceptable for judges as part of the case management process to specify the maximum number of pages that expert reports, witness statements and skeleton arguments amount to. This is going to be very important in practice to consider at preliminary stages. The case will not comply with the practice direction if expert’s produce excessively lengthy reports, or if one parties statement is of considerable length.
The President, in Re A  EWFC 11, expressed what in reality should have been stating the obvious, but in practice often did not occur. He made it abundantly clear that:
“… the local authority, if it is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove… If the “thing” is put in issue, the local authority must prove the “thing” and establish that it has the significance attributed to it by the local authority”. (I.e it passes threshold)
Often in practice the social worker would provide hearsay evidence of concerns, but now the source material will need to be provided and evidence given by the source of the concern.
Of course, we all recognise that we live in a world focused on saving time and money. The higher courts have made it abundantly clear that justice should not be sacrificed, in order to save money and avoid delay, but how is a party who makes allegations to do justice in 350 pages? Of course, there will be some cases where this is not a difficulty. What about the financial remedy case where it is alleged that one of the parties has concealed assets or income and a thorough forensic analysis is required of a multitude of accounts and asset transfers? What about the public or private law case that contains a multitude of allegations or living arrangement options where there are multiple parties where every issue is disputed? Gone are the days of Facebook and text messages running to several lever arch files!
PD27A makes it clear that the 350 page limit can be exceeded with permission, and that source material, such as police disclosure and bank statements can be contained in the court bundle, but still a direction is required. The practitioner however, now needs to be extra vigilant to ensure that the appropriate directions are sought at every stage of proceedings to prevent the sanctions outlined by Munby P being imposed. What is important, is that there is a thorough analysis of the relevant issues at every stage and that these issues are not left for the final hearing with the advocates attending and being faced with criticism and being sent away to reduce the bundle. Bundles are to be lodged prior to and not at the final hearing.
What the President makes clear is that his concern does not relate to the rogue practitioner who does not comply, but that there is wide spread breach of this practice direction and this will not be permitted to continue.
Seemingly there has not been made much of the inbuilt sanctions within PD27A that can entitle the Court to remove a hearing from the list… obvious cost consequences may well then flow for the breaching party, including Counsel who is formally obligated to provide documents ahead of a hearing.
I consider that the cases of Re L and Re A are compatible, but only with a thorough analysis at every stage of whether directions should be sought to permit non-compliance with PD27A and such to be clearly stated in the interim orders.