Sitting at NORTHAMPTON
Strand, London, WC2A 2LL
B e f o r e :
|In the matter of L (A Child)|
Mr Guy Spollon (instructed by Hammonds) for the mother
Ms Cecilia Barrett (instructed by Turpin Miller LLP) for the father (K) of child L
Ms Keira Gardner (of Kundert Solicitors LLP) for the father of the younger children
Ms Gill West (of Jackson West) for the children's guardian
Hearing date: 28 January 2015
This judgment was handed down in open court
Crown Copyright ©
Sir James Munby, President of the Family Division :
"K is unable to put forward a position at present until he has had the opportunity of considering the papers.
The Court notes that K agreed not to receive the full bundle of papers in Slovene. Turpin and Miller LLC instructed on behalf of K have produced a schedule of documents considered to be essential to be translated, as per the schedule attached. This was undertaken in an attempt to reduce the costs of translation.
The Court Orders …
The solicitor for K shall have leave to disclose the bundle of documents proposed to be translated to KL Translation Services for the purposes of obtaining a quotation as to the costs of translation. It is certified by the Court that the costs of translation of £0.102 per word is reasonable cost and costs justified to be expended on the public funding certificate of K. The Court certifies that it is necessary for the bundle of papers to be translated to Slovene so that they are accessible to K."
"I refer to your application for prior authority to incur over £23,000.00 translating a substantial part of the Court bundle from Slovenian to English.
This application is refused as it is not considered the expenditure is necessary or justified. It is accepted that if the client cannot speak or read English he does need to understand the evidence. However, it is very unlikely indeed that he will actually to read such a large volume of documentation. Further, unless the client is a lawyer or has some experience of the work done by child professionals, I cannot see that a verbatim translation would be of any real benefit to him. If the client were an English speaker, would you consider it essential that he was provided with a copy of the Court bundle?
I suggest you review your strategy and put together a further quote in which the conducting solicitor summarises the key documents for the client and then provides an estimate for the cost of translation of that summary for the client. It is the experience of the writer this is likely to result in a fraction of the cost of a full translation.
There is no right of appeal against this refusal. However, in the event that you decide to go ahead with the cost of the translation without prior authority, there will be a right of appeal to an Adjudicator in the event that these costs are disallowed on consideration of your High Cost Case Plan."
The other letter read as follows:
"Thank you for your request for prior authority. After considering the information provided, I have refused your application for the following reason(s): it is not considered that the expense is reasonable or necessary having regard to the issues in the case and/or the value of the claim.
Since the introduction of the 2010 Standard Civil Contract and the 2012 Family Contract there is no right of appeal.
If you have any questions, please call our Customer Service Team on the number at the top of this letter."
I am not at all surprised that the LAA decided as it did. Its decision was re-iterated in a further letter dated 6 January 2015.
"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",
it is at first blush surprising that the court bundle in this case is well over 2½ times that size and that the number of pages to be translated is so greatly in excess of the bundle page limit.
"Th[e] 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 learned to do better."
I added (para 7) that:
"there is, and can be, absolutely no excuse for [practitioners] not being completely familiar with the Practice Direction and its contents and complying meticulously with its requirements".
Yet here we are, more than six years on, and almost fifteen years after the original Practice Direction, continuing to experience, and experience far too frequently, serious default in complying with the requirements of PD27A.
"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."
That had not been done. I said (paras para 12-14):
"12 … in each case, as and when the various position statements did come in, they were sent to the court and not, as required, also sent by email to my clerk. Lest any pedant seeks to take the point that I am not a judge of the High Court, may I make it clear that this requirement applies as much to hearings before the President of the Family Division as to any other judge of the Family Division.
13 Compounding its earlier defaults, Bristol City Council also failed to comply with paragraph 7.4 of PD27A:
"Unless the court has given some other direction or paragraph 7.5 applies" – this relates to hearings listed before a bench of magistrates – "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."
Bristol City Council had lodged a duplicate bundle, marked 'Witness Bundle', and moreover in relation to a hearing where there was no suggestion that oral evidence might be called.
14 I take this opportunity of reminding practitioners of what I said, some six years ago, in Re X and Y (Bundles)  EWHC 2058 (Fam),  2 FLR 2053. Failure by the professions to comply with their obligations under PD27A is simply unacceptable."
Subsequent experience of continuing defaults suggests that I was merely wasting my breath.
"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 pursuant to the decision in R (on the application of Hamid) v Secretary of State for the Home Department  EWHC 3070 (Admin). Perhaps such a court would regularly consider whether to disallow fees pursuant to CPR 44.11(1)(b) and/or section 51(6) Senior Courts Act 1981."
Holman J adopted another technique (paras 52-55):
"52 … There has been wholesale breach of the practice direction … I propose to deal with it, in this case, as follows. Except for the two skeleton arguments and the chronology, every single piece of paper that has so far been lodged will be taken away from this courtroom now …
53 I will adjourn this case now until 10.30 tomorrow morning. At 10.30 tomorrow morning, unless by then the parties have reached an overall settlement of this case, they must attend with one, single, composite bundle, containing not more than 300 pages as the President's direction requires. I say 300, for I am excluding and retaining the two existing skeleton arguments, which … extend to about 50 pages …
54 If the parties cannot agree as to the contents of the documents bundle, then each side can select 150 pages of their own choosing, thereby making the total of 300 …
55 I wish to emphasise as strongly as I can by this judgment … that the President's practice direction … mean[s] what [it] say[s] and must be adhered to. There is no more room at all for courts being resigned or fatalistic when the sort of thing that has happened in this case happens again. As Mostyn J said in J v J at paragraph 52, it is no use the court continuing feebly to issue empty threats. There is only one effective sanction, and that is what I propose to apply. The whole lot must be taken away and we start again."
"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. There should only be one single bundle unless prior permission to use more than one has been obtained."
A judge, exercising the power conferred by para 5.1, may of course, in an appropriate case, direct that there is to be a single "core" bundle accompanied by other bundles arranged in accordance with directions given by the judge. But unless a judge has specifically directed, using the expression, that there is to be a "core bundle", the expression is not to be used: the obligation on the parties is to prepare a PD27A-compliant "bundle".
"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."
This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child)  EWFC 11.
"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 (emphasis added)."
In other words, there is a double requirement to be satisfied before any document is included in the bundle: it must be relevant and it must be a document which will used, in the sense that it will either be read or referred to. This principle is reinforced by the list of documents which PD27A para 4.1 states "must not be included in the bundle unless specifically directed by the court".
"there is no reason why case management judges should not, if appropriate, specify the maximum length of an expert's report. The courts have for some time been doing so in relation to witness statements and skeleton arguments. So, why not for expert's reports? Many expert's reports, I suspect, require no more than (say) 25 or perhaps 50 pages, if that. Here, as elsewhere, the case management judge must have regard to the overriding objective and must confine the expert to what is necessary."
i) Defaulters can have no complaint if they are exposed, and they should expect to be exposed, to public condemnation in judgments in which they are named.
ii) Defaulters may find themselves exposed to financial penalties of the kind referred to by Mostyn J in J v J.
iii) Defaulters may find themselves exposed to the sanction meted out by Holman J in Seagrove v Sullivan.
The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions, including but not limited to those I have already mentioned. If, despite this final wake-up call, matters do not improve I may be driven to consider setting up the special delinquents' court suggested by Mostyn J.
"5 … The purpose of all this is to ensure that the judge can embark upon the necessary pre-reading in a structured and focused way, making the best and most efficient use of limited time, so that when the case is actually called on in court everyone can proceed immediately to the heart of the matter, without the need for any substantial opening and with everyone focusing upon the previously identified issues. The objective is to shorten the length of hearings and thereby to increase the 'throughput' of the family courts – with the ultimate objective of bringing down waiting times and reducing delay.
6 But these wholly desirable objects – wholly desirable in the public interest and in the interests of litigants generally – are imperilled whenever there is significant non-compliance with the Practice Direction …"
i) Threshold document – 3 pages (A6-8): It is necessary for K to see this document in translation so that he can understand precisely what the local authority's case is. Thus the translation of 3 pages (A6-8) is necessary.
ii) Initial statement by social worker – 24 pages (D2-25, D28): Much of this deals with the mother and the other father and there is no need for it to be translated for K. It is necessary for K to see in translation (a) Parts 1 (Introduction) and 2 (Summary), ie, pages D2-5, (b) one passage in Part 5 (Background) on page D12 which relates to K, (c) two passages in Part 6 (Parenting capacity) on pages D19-20 which relate to K, ie, paras 6.12-6.13 and 6.13 (second so numbered) and (d) Part 8 (Welfare checklist), ie, pages D22-25. Thus the translation of parts of only 11 pages (D2-5, D12, D19-20 and D22-25) is necessary.
iii) Statement by school-headteacher – 11 pages (D31-41): This is a detailed account of L's behaviour and presentation at school and of the school's dealings with the mother. There is no need for this to be translated for K.
iv) Parenting assessment of the other father – 31 pages (D42-72): The only parts of this that it is necessary for K to see in translation are Parts 10 (Analysis and Conclusions) and 11 (Recommendations), ie, pages D67-68, 2 pages.
v) Final statement by social worker – 21 pages (D150-170): The only parts of this that it is necessary for K to see in translation are Parts 5 (Conclusions reached and proposed care plan) and 6 (Conclusion), ie, pages D158-170, a total of 13 pages.
vi) Mother's statements – 73 pages (E1-9, E47-49, E70-130): It is necessary for K to see the following paragraphs in translation: (a) first statement para 17 (page E6) and (b) final statement paras 1, 6, 61, 70, 90, 101, 112-114 and 145 (parts of only 9 pages, E71, E73, E93, E96, E102, E105, E110-111 and E121).
vii) Statement by the other father – 2 pages (F1-2): It is necessary for K to see this in translation.
viii) Care plan for L – 8 pages (H61-68): It is necessary for K to see this in translation.
ix) Psychological report on mother (extract) – 11 pages (J30-41): It is not necessary for K to see this in translation.
x) ISW report on the other father – 28 pages (J58-85): It is necessary for K to see Part 6 (Conclusion) in translation, ie, pages J81-83.
xi) Social work chronology – 26 pages (C1-26): It is not necessary for K to see this in translation.
xii) Police disclosure – 19 pages (L84-85, L88-104): It is not necessary for K to see this in translation.
In short, it is necessary for K to see in translation, either in whole or in part, only 51 pages. The contrast with the 591 pages originally identified for translation, and even with the more modest total of 246 pages subsequently identified, is striking.