Court bundles may not be the most enthralling or captivating subject for a legal update, but the run of recent cases on the issue is essential reading for practitioners if they wish to avoid censure, adverse costs orders or worse – being publicly named and shamed.

Over the past few months, the president of the Family Division Sir James Munby, Mostyn and Holman JJ have made their views clear about non-compliance by practitioners.

The starting point is the amendment to the Family Procedure Rules 2010 which was brought into effect in 2014. Paragraph 5.1 of practice direction 27A (PD27A) states: ‘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.’

The document – ‘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’, issued by Mostyn J with the approval of the president on 5 June 2014 – stated that the court bundle ‘must scrupulously comply with FPR PD27A’ and that unreasonable failure to comply with the statement may be penalised in costs.

PD27A applies not only to interim hearings, but final hearings too. Accordingly, the practice of lodging numerous bundles is no longer acceptable. Only one bundle is allowed, unless the court has directed otherwise. A direction for additional bundles must be made before the relevant hearing and with good reason.

Not only must practitioners give careful thought to limiting the bundle to one lever arch file, but PD27A also deals specifically with the contents of the bundle. Paragraph 4.1 of PD27A states that a bundle must 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. The provision also lists documents which specifically must not be included in the bundle unless directed by the court.

For the purpose of family financial remedy proceedings, that includes correspondence, medical records, bank and credit card statements and other financial records.

Paragraph 4.3 of PD27A details the preliminary documents which must be included in the bundle (such as a case summary, statement of issues and chronology). Paragraph 4.2 also specifies the order in which the remaining contents of the bundle must be set out: preliminary documents followed by applications and orders; followed by statements; then experts’ reports; and then any other documents.

Mostyn J’s judgment in J v J [2014] EWHC 3654 (Fam) raised several issues in respect of the conduct of the litigation. The judge was critical of an earlier order in which a previous judge had granted permission for the parties to rely on the existing bundles. The earlier order contained the statement that the court viewed it as disproportionate to prepare new bundles for the purposes of an adjourned final hearing.

Mostyn J questioned for whom it would be disproportionate, stating: ‘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 into a single bundle.’

Mostyn J also deprecated the practice of circumvention whereby both sides agree a ‘core’ bundle and, in addition, there are several further bundles of secondary or background information. He described that as being the wrong approach. There should only be one single bundle, unless prior permission to use more than one has been obtained from the court.

Mostyn J was concerned that the profession paid no attention to the rules regarding bundles and it was of no use for the courts feebly to issue empty threats. The judge suggested that perhaps it would be necessary for the president ‘to set up a special court before which delinquents will be summoned to explain themselves in open court’.

On a more positive note, Mostyn J stated that if the parties wished to have a trial with numerous bundles, then it is open to them to enter into an arbitration agreement which specifically allows for that.

In a similar vein, in Seagrove v Sullivan [2014] EWHC 4110 (Fam), Holman J was presented with bundles exceeding 2,000 pages. On the first day of the trial he was presented with a further 1,500 pages of documents. He ordered that apart from the two skeleton arguments and chronology, all of the documentation be removed from the courtroom.

The hearing was adjourned until 10.30 the following morning. Holman J directed that unless the parties reached a settlement in the meantime, they were to attend with one single agreed bundle containing no more than 300 pages (on the basis that the retained skeleton arguments and chronology amounted to approximately 50 pages). Holman J proposed that if the parties cannot agree the contents of the documents for the bundle, then each side can collect 150 pages of their own choosing, thereby making it only 300.  

In addition, he allowed one bundle of not more than five authorities. If they cannot agree upon the authorities, then he proposed that they must at least agree on one essential authority and they may each include two further authorities of their own choosing.

The problem was addressed by Munby in Re L (procedure: bundles: translation) [2015] EWFC 15. He referred to his earlier judgment in Re X and Y (bundles) [2008] EWHC 2058 (Fam) in which he expressed the following views regarding bundles: ‘The continuing failure by the professions to comply with their obligations is simply unacceptable. Enough is enough. Eight years of default are enough. Eight years are surely long enough for even the most casual practitioner to have learnt to do better.’ The president’s judgment is notable for the following:

(a)    Agreeing with Mostyn J, there is no concept of a single ‘core’ bundle with supporting bundles in PD27A.

(b)    Defaulters may be exposed and should expect to be subject to public condemnation and judgments in which they are named.

(c)    Defaulters may find themselves exposed to financial penalties.

(d)    Defaulters may find themselves exposed to the sanction imposed by Holman J in Seagrove v Sullivan, leading to an adjournment of the case.

(e)    Counter staff at court offices will be instructed to refuse to accept witness bundles, unless a judge has specifically directed that they are to be lodged. The staff will tell whoever is trying to lodge the bundle to take them away.

On the issue of experts’ reports, the president expressed the view that there was no reason why case management judges should not specify the maximum length of an expert’s report. A similar approach could also be adopted in relation to skeleton arguments or witness statements.

The president concluded with a clear warning: ‘The judges of the Family Division and the Family Court have had enough. The professions have been warned.’

Andrew Newbury, Slater and Gordon

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