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20 JUN 2018

Draft revised Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)

Sir James Munby

Immediate Past President of the Family Division

Draft revised Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)
This Practice Direction supplements FPR Part 27 and comes into force on 23 July 2018

[Note by the President 12 June 2018 (not part of the Practice Direction): This is the final approved draft of the revised PD27A, which has been approved by the Family Procedure Rule Committee, by me and by the Master of the Rolls, and awaits only formal signature by the Minister. I have agreed with MoJ that it will come into force on 23 July 2018. I circulate it now, so that everyone can have good notice. The basic PD27A remains as before. There are various minor changes. The three main changes are (i) the introduction of page limits for certain types of document (these can, of course, be varied by the judge if necessary in any particular case), (ii) further requirements in relation to bundles of authorities, and (iii) the inclusion of various provisions making clear that PD27A applies, with certain modifications, to electronic as well as to paper bundles.]

Practice Direction 27A 

1.1 The President of the Family Division has issued this practice direction to achieve consistency across the country in the Family Court and the Family Division of the High Court in the preparation of court bundles and in respect of other related matters.

Application of the practice direction

2.1 Except as specified in paragraph 2.4, subject to specific directions given in any particular case and, in relation to electronic bundles, subject to such directions in relation to local arrangements (“the local arrangements”) as have been specified by the designated family judge for the relevant area with the agreement of the President of the Family Division, the following practice applies to:
a) all hearings before a judge sitting in the Family Division of the High Court wherever the court may be sitting; and
b) all hearings in the Family Court.

2.2 'Hearing' includes all appearances before the court, whether with or without notice to other parties, whether at first instance or (subject to paragraph 5.2A.3) on appeal and whether for directions or for substantive relief.

2.3 This practice direction applies whether a bundle is being lodged for the first time or is being re-lodged for a further hearing (see paragraph 9.2).

2.4 This practice direction does not apply to the hearing of any urgent application if and to the extent that it is impossible to comply with it.

2.5 This practice direction applies whether the bundle is prepared and presented in paper or in electronic format. In relation to a hearing before a High Court Judge an electronic bundle may be used with the permission of the judge and in accordance with directions given by the judge. In relation to all other hearings an electronic bundle may be used only -
a) in such cases or classes of case as have been approved by the designated family judge for the relevant area with the agreement of the President of the Family Division; and
b) in accordance with the local arrangements. 

2.6 In this practice direction, the term “lodged with the Court” and any comparable expression in respect of an electronic bundle means making the electronic bundle available to the Court or Judge (and, where required, to the other parties) in accordance with the local arrangements.

Responsibility for the preparation of the bundle

3.1 A bundle for the use of the court at the hearing shall be provided by the party in the position of applicant at the hearing (or, if there are cross-applications, by the party whose application was first in time) or, if that person is a litigant in person, by the first listed respondent who is not a litigant in person. 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.

3.2 The party preparing the bundle shall paginate it using Arabic numbering throughout. If possible the contents of the bundle shall be agreed by all parties. Article continues below...

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Contents of the bundle

4.1 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;
d) notes of contact visits;
e) foster carer logs;
f) social services files (with the exception of any assessment being relied on by any of the parties);
g) police disclosure.

This does not prevent the inclusion in the bundle of specific documents which it is necessary for the court to read or which will actually be referred to during the hearing.

4.2 The documents in the bundle shall be arranged in chronological order from the front of the bundle, paginated individually and consecutively (starting with page 1 and using Arabic numbering throughout), indexed and divided into separate sections (each section being separately paginated) as follows:
a) preliminary documents (see paragraph 4.3) and any other case management documents required by any other practice direction;
b) applications and orders;
c) statements and affidavits (which must be dated in the top right corner of the front page) but without exhibiting or duplicating documents referred to in para 4.1;
d) care plans (where appropriate);
e) experts' reports and other reports (including those of a guardian, children's guardian or litigation friend); and
f) other documents, divided into further sections as may be appropriate.

All statements, affidavits, care plans, experts' reports and other reports included in the bundle must be copies of originals which have been signed and dated.

4.3 At the commencement of the bundle there shall be inserted the following documents (the preliminary documents):
a) an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if practicable, to four A4 pages;
b) a statement of the issue or issues to be determined (1) at that hearing and (2) at the final hearing;
c) a position statement by each party including a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing;
d) an up to date chronology, if it is a final hearing or if the summary under (a) is insufficient, each entry being limited, if practicable, to one sentence and cross-referenced to the relevant page(s) in the bundle;
e) skeleton arguments, if appropriate;
f) a list of essential reading for that hearing; and
g) the time estimate (see paragraph 10.1).

4.3A.1 Copies of all authorities relied on must be contained in a separate composite bundle agreed between the advocates. 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 not contain more than 10 authorities. Where a case is reported in a law report which contains a headnote, such a report shall be used and transcripts (including transcripts on BAILII) shall not be used. Where the bundle is in electronic format an appropriate hyperlink to each authority should be provided.

4.3A.2 Attention is drawn to paragraph 6 of Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 and to Practice Direction (Citation of Authorities) [2012] 1 WLR 780 (both set out in The Family Court Practice) which must be complied with. The reference to “county court cases” in para 6.1 of the first practice direction should be read as including family court cases decided by a judge other than a judge of High Court judge level. Therefore, a judgment on an application attended by one party only, or on an application for permission to appeal, or that only decides that the application is arguable, or by the county court, or in the family court of a judge other than a judge of High Court judge level, may not be cited or included in the bundle of authorities unless either (i) the judgment clearly indicates that it purports to establish a new principle or to extend the present law or (ii) the court for good reason has specifically directed otherwise.

4.4 Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties' legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents.

4.5 The summary of the background, statement of issues, chronology, position statement and any skeleton arguments shall be cross-referenced to the relevant pages of the bundle.

4.6 The summary of the background, statement of issues, chronology and reading list shall in the case of a final hearing, and shall so far as practicable in the case of any other hearing, each consist of a single document in a form agreed by all parties. Where the parties disagree as to the content the fact of their disagreement and their differing contentions shall be set out at the appropriate places in the document.

4.7 Where the nature of the hearing is such that a complete bundle of all documents is unnecessary, the bundle (which need not be repaginated) may comprise only those documents necessary for the hearing, but
a) the summary of the background must commence with a statement that the bundle is limited or incomplete; and
b) the bundle shall if reasonably practicable be in a form agreed by all parties.

4.8 Where the bundle is re-lodged in accordance with paragraph 9.2, before it is re-lodged:
a) the bundle shall be updated as appropriate; and
b) all superseded documents (and in particular all outdated summaries, statements of issues, chronologies, skeleton arguments and similar documents) shall be removed from the bundle.

Format of the bundle

5.1 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 (if a paper 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 and (if an electronic bundle) shall be limited to 350 pages of text.

5.2 All documents in the bundle (including statements, affidavits, care plans and experts’ reports and other reports) shall (a) in the case of a paper bundle be copied on one side of paper only, unless the court has specifically directed otherwise, (b) be divided by the author into numbered paragraphs and (c) be typed or printed in a font no smaller than 12 point and with 1½ or double spacing.

5.2A.1 Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, and subject to paragraph 5.2A.2 below, any of the following documents included in the bundle shall be limited to no more than the number of sheets of A4 paper and sides of text specified below:
Case summary 6
Statement of issues 2
Position statement 3
Chronology 10
Skeleton argument 20
List of essential reading 1
Witness statement or affidavit (exclusive of exhibits) 25
Expert’s or other report 40 (including executive summary at the beginning of no more than 4 pages)
Care plan 10

5.2A.2 The length and content of skeleton arguments in financial remedy cases which have been allocated to a High Court Judge shall continue to be governed by paragraph 15 of the Statement on the Efficient Conduct of Financial Remedy Hearings dated 1 February 2016.

5.2A.3 In the case of an appeal the bundle must comply with the relevant paragraphs of PD 30A.

5.3 The ring binder or lever arch file in the case of a paper bundle shall have clearly marked on the front and the spine:
a) the title and number of the case;
b) the place where the case has been listed;
c) the hearing date and time;
d) if known, the name of the judge hearing the case; and
e) where in accordance with a direction of the court there is more than one ring binder or lever arch file, a distinguishing letter (A, B, C etc).

In the case of an electronic bundle the bundle must be clearly identifiable with the title and number of the case and as much of the information set out above as is practical should also be provided in accordance with the local arrangements. 

Timetable for preparing and lodging the bundle

6.1 The party preparing the bundle shall, whether or not the bundle has been agreed, provide a paginated index to all other parties not less than 4 working days before the hearing.

6.2 Where counsel is to be instructed at any hearing, a paginated bundle shall (if not already in counsel's possession) be delivered to counsel by the person instructing that counsel not less than 3 working days before the hearing.

6.3 The bundle (with the exception of the preliminary documents if and insofar as they are not then available) shall be lodged with the court not less than 2 working days before the hearing, or at such other time as may be specified by the court.

6.4 The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall (with the exception of the authorities, which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge's clerk.

Lodging the bundle

7.1 The bundle shall be lodged at the appropriate office. If the bundle is lodged in the wrong place the court may:
a) treat the bundle as having not been lodged; and
b) take the steps referred to in paragraph 12.

7.2 Unless the court has given some other direction as to where the bundle in any particular case is to be lodged (for example a direction that the bundle is to be lodged with the judge's clerk) the bundle shall be lodged:
a) for hearings at the RCJ, in the office of the Clerk of the Rules, 1st Mezzanine (Rm 1M), Queen's Building, Royal Courts of Justice, Strand, London WC2A 2LL (DX 44450 Strand);
b) for hearings at any other place, at such place as may be designated by the designated family judge responsible for that place and in default of any such designation at the court office for the place where the hearing is to take place.

7.3 Any bundle sent to the court by post, DX or courier shall be clearly addressed to the appropriate office and shall show the date and place of the hearing on the outside of any packaging as well as on the bundle itself.

7.4 Unless the court has given some other direction or paragraph 7.5 applies only one copy of the bundle shall be lodged with the court but the party who is responsible for lodging the bundle shall bring to court at each hearing at which oral evidence may be called a copy of the bundle for use by the witnesses (or in the case of an electronic bundle make appropriate arrangements in accordance with the local arrangements for the use by the witnesses of the electronic bundle).

7.5 In the case of a hearing listed before a bench of magistrates where a paper bundle is to be used four copies of the bundle shall be lodged with the court.

7.6 In the case of hearings at the RCJ or at any other place where the designated family judge responsible for that place has directed that this paragraph shall apply, parties shall:
a) if the bundle or preliminary documents are delivered personally, ensure that they obtain a receipt from the clerk accepting it or them; and
b) if the bundle or preliminary documents are sent by post or DX or electronically, ensure that they obtain proof of posting or despatch.

The receipt (or proof of posting or despatch, as the case may be) shall be brought to court on the day of the hearing and must be produced to the court if requested. If the receipt (or proof of posting or despatch) cannot be produced to the court the judge may: (a) treat the bundle as having not been lodged; and (b) take the steps referred to in paragraph 12.

Lodging the bundle – additional requirements for Family Division or Family Court cases being heard at the RCJ

8.1 Bundles or preliminary documents delivered after 11 am on the day before the hearing may not be accepted by the Clerk of the Rules and if not shall be delivered:
a) in a case where the hearing is before a judge of the High Court, directly to the clerk of the judge hearing the case;
b) in a case where the hearing is before any other judge, to such place as may be specified by the Clerk of the Rules.

8.2 Upon learning before which judge a hearing is to take place, the clerk to counsel, or other advocate, representing the party in the position of applicant shall no later than 3 pm the day before the hearing:
a) in a case where the hearing is before a judge of the High Court, telephone the clerk of the judge hearing the case;
b) in a case where the hearing is before any other judge email the Clerk of the Rules at RCJ.familyhighcourt@hmcts.gsi.gov.uk;
to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall organise prompt delivery by the applicant's solicitor.
Removing and re-lodging the bundle

9.1 Unless either the court wishes to retain the bundle or specific alternative arrangements have been agreed with the court, the party responsible for the bundle shall, following completion of the hearing, retrieve the bundle from the court immediately or, if that is not practicable, collect it from the court within 5 working days. Bundles which are not collected in due time are liable to be destroyed without further notice. The local arrangements will specify the length of time that an electronic bundle will remain available to the court following a hearing.

9.2 The bundle shall be re-lodged for the next and any further hearings in accordance with the provisions of this practice direction and in a form which complies with para 4.7.

Time estimates

10.1 In every case a time estimate (which shall be inserted at the front of the bundle) shall be prepared which shall so far as practicable be agreed by all parties and shall:
a) specify separately: (i) the time estimated to be required for judicial pre-reading; and (ii) the time required for hearing all evidence and submissions; and (iii) the time estimated to be required for preparing and delivering judgment;
b) be prepared on the basis that before they give evidence all witnesses will have read all relevant filed statements and reports; and
c) take appropriate account of any additional time likely to be incurred by the use of interpreters or intermediaries.

10.2 Once a case has been listed, any change in time estimates shall be notified immediately by telephone (and then immediately confirmed in writing):
a) in the case of hearings in the RCJ, to the Clerk of the Rules; and
b) in the case of hearings elsewhere, to the relevant listing officer.

Taking cases out of the list

11.1 As soon as it becomes known that a hearing will no longer be effective, whether as a result of the parties reaching agreement or for any other reason, the parties and their representatives shall immediately notify the court by telephone and email which shall be confirmed by letter. The letter, which shall wherever possible be a joint letter sent on behalf of all parties with their signatures applied or appended, shall include:
a) a short background summary of the case;
b) the written consent of each party who consents and, where a party does not consent, details of the steps which have been taken to obtain that party's consent and, where known, an explanation of why that consent has not been given;
c) a draft of the order being sought; and
d) enough information to enable the court to decide (i) whether to take the case out of the list and (ii) whether to make the proposed order.

Penalties for failure to comply with the practice direction

12.1 Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a 'wasted costs' order or some other adverse costs order.

Commencement of the practice direction and application of other practice directions

13.1 This practice direction shall have effect from 23 July 2018.

14.1 This practice direction should where appropriate be read in conjunction with the Public Law Outline 2014 (PD12A) and the Child Arrangements Programme 2014 (PD12B). In particular, nothing in this practice direction is to be read as removing or altering any obligation to comply with the requirements of the Public Law Outline 2014 and the Child Arrangements Programme 2014.

This Practice Direction is issued –
a) in relation to family proceedings, by the President of the Family Division, as the nominee of the Lord Chief Justice, with the agreement of the Lord Chancellor; and
b) to the extent that it applies to proceedings to which section 5 of the Civil Procedure Act 1997 applies, by the Master of the Rolls as the nominee of the Lord Chief Justice, with the agreement of the Lord Chancellor.
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