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It is hardly headline-grabbing news to say that the family court is under immense pressure at the moment. There are increasing numbers of litigants in person having to manage complex and emotionally draining disputes in the courts without the benefit of legal advice or representation, due to the removal of legal aid for all but a few family cases. Judges are finding themselves having to help litigants in person by spending greater time explaining the procedures, decisions and implications. Additionally, court budgets have been cut and there are fewer full-time specialist judges. So cases are taking longer, and court time is even more precious than before.

In tandem with this trend, there have been attempts to curtail the amount of paperwork judges have to wade through when they are hearing a case. Practice directions are rules governing how solicitors, barristers, unrepresented parties and the court must go about preparing and presenting a case. They supplement, and must be read in conjunction with, the Rules of Court.

One practice direction which has been brought in specifically to streamline hearings and focus minds on the core issues in dispute concerns ‘court bundles’ – the technical term for the papers that the court is required to read and have available to it before and during a hearing. It provides that, when a case goes to trial there is to be one ‘bundle’ – a lever arch file – of no more than 350 pages containing the key documents which the judge needs to see, and to which the parties will refer in the trial. One bundle of documents, properly paginated, aims to focus minds on what is really important in the case, and reduce time wasted reading and looking for the more peripheral evidence.

In two recent cases, judges have lambasted what appears to be a growing practice in some legal quarters to get around the one bundle rule by treating the specified one bundle as a “core bundle” and then delivering to court several other piles of paper on the eve of the hearing. Both cases have also featured staggering legal costs.

The first one, J v J, concerned a couple who had been married for 15 years and had two children. By the time of the final financial hearing in divorce proceedings they had spent £920,000 on legal costs between them, which represented a third of what they had built up together during their relationship. The judge described this is a grotesque leaching of legal costs. Their litigation was characterised by a failure to agree on anything, and there were 8 bundles prepared for the hearing (not the single one stipulated) which wasted a “prodigious amount of time” while witnesses shuffled papers and files around. In the end the assets were split equally, and it cost the couple close to £1m to get that result.

The second one, Seagrove v Sullivan, concerned a couple who had not married but had been together for 20 years and had three children. They were arguing over whether one of them could claim a half share of their house under trust and property law (as the situation for cohabitants is very different to that for spouses and civil partners, and the law that applies is rather cobbled together). Between them, by the time the case came to trial they had managed to spend a staggering £1,300,000 on legal costs. The half interest in the house, over which they were arguing, was valued at £500,000. The judge, quite rightly, described this as “appalling profligacy”, given that the amount spent on legal costs was approaching three time the amount they were arguing over.

The judge was also flabbergasted at the wanton disregard for the practice direction requiring a single bundle to be prepared. Five lever arch files had been delivered to the court the day before the trial, then a further three bundles of case law authorities were sent to the court, then on the morning of the trial, lawyers arrived with a further five bundles. We make that thirteen folders of papers, which amounted to 3500 pages to be considered and referred to – ten times the permitted limit. The judge referred to the amount of paperwork produced for this relatively simple dispute as ridiculously disproportionate. He then took the dramatic step of ordering all the bundles to be removed from the courtroom, adjourned the case until the following day, and only permitted the parties to return to court the following day once they had agreed one bundle, as per the practice direction.

Sensibly, overnight, the parties managed to come to an agreement.

Given the pressure on court time, the question of proportionality of litigation is a pertinent one. The courts have to allocate their stretched resources fairly. The judge in the Seagrove case was driven to comment: “the courts have a duty to ensure that an appropriate, but only an appropriate, share of the court’s resources are allocated to any one case. [They] have to deal also with an enormous number of very difficult cases involving the future of vulnerable children, and the care and treatment of sick people, including mentally incapacitated people. It is simply not tolerable that we go on and on affording to people like [the parties in this case] an estimated eight days of court time on a dispute that ultimately is measured in something not exceeding about £500,000”.

It looks to us like the courts will be getting much stricter in financial family matters, rigorously managing court time and resources and trying to ensure fair hearings for all.  These cases also serve as a reminder that it is essential to instruct good lawyers who will keep an eye on the level of your costs and look for ways to avoid court if at all possible.

As ever, if there is anything of a family law nature that you would like to make an appointment to talk to us about, please get in touch with Tricia, Gail, Adam, Simon or Sue on 01223 443333.

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