Bundles of fun

A final hearing in financial relief cases should be rare. With realistic advice to the parties, proper engagement at the financial dispute resolution appointment, and encouragement from the judge, cases should settle. But some do not and need a final hearing. So how can you help the judge and present your client’s case in the best light?

Judges do try to pre-read cases in advance of the hearing. This only works if there is something sensible to pre-read. The trial bundle is the obvious place to start but preparing one seems to cause more problems than it ought to.

On a recent case, which was adjourned because the bundle was woefully inadequate, I asked the advocate what he thought the purpose of the bundle was. He was clearly perplexed by the question and confessed he had never thought about it from a judge’s point of view. He had no inkling it was a way to introduce the person deciding his client’s case to the issues and relevant papers.

The starting point for preparation of the bundle is rule 27.6 of the Family Procedure Rules 2010: this provides that compliance with practice direction 27A is mandatory. The practice direction makes it clear it is only legally represented parties who are obliged to prepare bundles, with the applicant generally taking the lead.

Paragraph 4.1 sets out what should form part of the bundle but more importantly what should not (including in particular bank statements). Arguing over the content of the bundle is never a good way to start the hearing. Agree the contents in good time, and if you can’t agree do not be surprised when the direction is for a bundle of 350 pages with each party choosing half of them.

Paragraph 4.2 provides guidance on the sections that should comprise the bundle and paragraph 4.3 provides guidance on the preliminary documents. A separate authorities bundle should be prepared if appropriate. The preliminary documents should be cross-referenced to the bundle and for final hearings the background, chronology, reading lists, and statement of issues should be agreed.

The bundle should be no more than 350 pages, single sided, and suitably bound so as to survive transit in the DX system. Spiral-bound bundles or those fastened with treasury tags have advantages over mangled lever-arch files, whatever the practice direction requires. The instructions are detailed but they will enable a comprehensive and accessible bundle to be prepared.

Now the bundle is in the correct form, when should it be lodged? At least two working days before the hearing unless otherwise ordered. Preliminary documents must be lodged no later than 11am the day before the hearing. That is not the same as at 9.55am on the day of the hearing. A witness bundle should be brought to court for the hearing.

Failure to lodge the bundle and preliminary documents on time is extremely irritating to the trial judge. Time set aside for pre-reading is wasted and the parties do not have a tribunal who is up to speed with the facts and issues in the case.

Paragraph 12.1 of the practice direction sets out some consequences of failing to comply. The cases cited at pages 1837/8 of the 2017 edition of the Red Book are salutary reading. Courts are cracking down and adjourning cases which are not properly prepared. Wasted costs orders are being made where parties have failed to serve bundles and simply served indexes (usually to save on photocopying costs, which, when the copying costs were £60 and the wasted costs were two brief fees totalling £4,000, is a false economy if ever there was one).

Assuming the bundle is correct, it is also a good idea to arrive in good time for your hearing and allowing time for negotiation prior to the start time. Judges are usually keen to get cracking with their list and do not like receiving submissions on the lines of ‘Well I only received the bundle by email this morning and haven’t had a chance to read it yet…’.

If a skeleton argument is being prepared, it should be skeletal. Well-written ones set out the issues clearly in a way which the judge can use as a basis for their judgment. Proof read documents to eliminate embarrassing spelling and grammatical errors. Know your ‘principles’ from your ‘principals’.

Manage clients’ expectations, keep advocacy focused, avoid lengthy cross-examination on peripheral matters, and make submissions that are realistic and relevant to the facts of your particular case.

None of this advice can claim to be original or revolutionary. You might wonder why it needs saying as you always prepare your cases thoroughly. But sadly it appears necessary to remind parties of the basics on far too many occasions. The correctly prepared case is the exception rather than the rule. In all my time as a judge I have yet to come across one case prepared by both sides in accordance with the rules.

I conclude with a maxim learned when advising the military – proper preparation prevents piss-poor performance!

District Judge Andrew Dodsworth sits at Romford Family Court