A Right Bundle of Laughs

For those of you who need a bit of cheering up…And for those of you who were wondering whether the Bundles PD adopted an overcomplicated staged approach simply in order to tip you over the brink – no, there was method in it :

The Government has now published its response to its earlier consultation entitled “Court Bundles – Proposed changes to the Legal aid Family Advocacy Scheme”. The response paper can be found here. The Statutory Instrument making amendments to the Family Advocacy Scheme (FAS), will be laid on 3 June.

The Government intends to proceed with the proposal to retain the current bundle bolt-on fee scheme framework but link payment to the content and size of the Advocate’s bundle. In this context, the Advocate’s bundle would only consist of those served documents that are relevant and necessary to the case. As now, notes of contact visits are not expected to be included in the Advocate’s bundle unless the court has ordered that they be included in the court bundle for a specific hearing.

Changes to Practice Direction 27A, which introduce the maximum 350 page limit on the size of a court bundle, will come into force on 31 July. As a result, the Government will be making consequential changes to the FAS to ensure that bolt-on fees to advocates continue to be paid but payment will be made on the basis of the size of the Advocate’s bundle rather than the size of the court bundle. The level of bolt-on fees payable will remain at the same level as those payable now.

In short, advocates will still get paid for what they’ve read even if the judge hasn’t read it. The longer explanation is at pa 2.4 of the consultation response if you haven’t got the stomach to read the whole thing (really lazy people who can’t be bothered to click on the link above and find pa 2.4 can see below).

You see, you feel better already don’t you?



pa 2.4 to consultation response :

“Having considered all the responses to the consultation, the Government has decided to retain the current bundle bolt-on fee structure, but link payment to the size and content of the Advocate’s bundle. The Advocate’s bundle will be limited to those served documents which are relevant and necessary to the case. As now, notes of contact visits may not be included in the Advocate’s bundle for legal aid purposes unless the judge or person before whom proceedings are heard authorises their inclusion in the court bundle. The advocate in seeking to claim a bundle bolt-on fee payment will be required to submit, with the Advocate’s Attendance Form, the agreed paginated list of documents served agreed with the other parties which they consider are relevant and necessary to the case. The advocate would also be expected to provide a written explanation of why any documents included in the paginated list of documents were relevant and necessary to the case. The agreed paginated list, along with the explanation of why documents are included, would be submitted to the court at the hearing along with the Advocate’s Attendance Form for certification by the court. The court would base their certification upon the agreed paginated list of documents served but would be able to review the explanation provided if they considered it appropriate to do so.” 

2 thoughts on “A Right Bundle of Laughs

  1. Given that you need the Court’s permission for any of the checklist or disclosure documents to be used in the final hearing [or for a contested interlocutory hearing], doesn’t counsel actually need to read ALL of them, in order to make a decision as to whether they are relevant and necessary? I.e there may well be documents that don’t turn out to be relevant and necessary, but you can’t assess that until you have read them? So for IRH leading to a final hearing, why not just allow for the totality of the checklist and disclosure documents to be read?

    [Obviously if everyone comes to the IRH with accord about placement and order, it is probably not justifiable to read all of the mother and baby foster care records and contact notes if everyone is agreed that the child will be with mum under a Supervision Order]

    I can see courts having a difficulty in quarrelling with counsel’s assessment that 200 pages of checklist documents weren’t relevant and necessary when the Court hasn’t seen any of them. Or are we going to get into stuff like “It isn’t relevant and necessary for counsel for dad to read mum’s contact notes”

    • I would say yes, often you will need to read all the docs to make that decision. There will no doubt be occasions though when a solicitor has done that and is able to clearly state that x document is not at all relevant. And I know that often sols say this and counsel feels they have to read the docs anyway (I’ve certainly had many a bust up with sols who insist I don’t need all the papers, when I think I do) – but there must be *some* occasions when disclosed documents clearly show an issue to have been a total non-issue / red herring, and a particular line of enquiry just goes away prior to the next hearing as a result.
      I think the reality is though that at many IRHs where there is significant disclosure, there will have been at least one FCMH between disclosure and IRH, meaning that the docs will have been considered at the previous hearing. It won’t then be necessary for them to be read and claimed for at IRH stage because they are not relevant to *that hearing*.
      I have to say it all makes my head hurt a bit. What I can’t get my head around is if you get disclosure orders at CMH, and the material comes in between CMH and IRH, you have to read it before IRH (and so claim for it), how do you seek permission for it to go in the bundle for IRH? By C2? Surely not. By bringing a spare copy to court with you to wave at the judge in an attempt to persuade him to read them? And how do you seek permission at the IRH for the papers to go in the bundle for final hearing if the papers aren’t in the bundle the judge is looking at at the IRH? Or am I making it overcomplicated? Maybe you just do a C2 attaching the docs you want to go in for final, and ask for that issue to be returnable at the IRH. But that would just result in a massive section B!!
      I’m going for a lie down…

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