I’m feeling like a bad girl. I’m feeling like I’ve just come out of one of those school assemblies where the Head gives the whole school an earful because someone has set off the fire alarm for the third time this week. Yes, I’m feeling like a delinquent.
Last week we had Re A, and it was all about forensic rigour :
The first is that the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President’s Chambers,  Fam Law 680:
“Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.”
It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.
In short : you have to prove stuff. And you have to prove it through proper evidence.
But this week we have Presidential bundle rage in the form of Re L (here I imagine the President doing murder to an offending bundle, like those strong men of old ripping up telephone directories with their bare hands). And up and down the country next week bundles will be sacrificially burnt, shredded and quartered, in pyres outside every court in the land. With a lawyer roasting like Joan of Arc atop each one, most likely.
There was a moment late last week when this blog post was looking likely to comprise of a single three letter acronym for a well known sweary phrase – after all every word must have maximum impact, and space is at a premium.
But I am resisting. I am going to spell it out, I will spread my words liberally over the page and I shall end when I’m ready. I shall not (in this blog at least) be constrained to a single swear word or a single page of double spaced 12 point A4.
The President may think that the High Court bench have invented bundle rage, but I can say for sure that they have not. We live our lives in a continual state of low level bundle rage. Rage at the absence of the bundle, the index, the right documents or the right pages. Rage at the overloaded file, the broken file, the scag your suit and cut your finger file and (more common these days) rage at the failure to put the bundle in any file at all. Rage at the arrival of the bundle in thirty separate pdfs spread across 21 different emails in no particular order at 6pm the day before a hearing. Rage at the LA not having included half the documents in the index. Rage at the LA having included multiple witness statements all saying the same thing, at having included a chronology that isn’t chronological, an analysis containing no analysis…
No. I haven’t finished.
Rage at the arrival of your brief just before the 11am core documents deadline, but after you have left for court to deal with another matter. Rage at the absence of the last order from the bundle because the court haven’t issued it yet even though you slaved for 2 hours late at night over it and exchanged a string of emails with others about the fine detail of it to get it lodged in time to avoid a trip to the compliance court (yes, Mostyn J’s “Delinquent court” invention is already a reality in several DFJ areas).
So down here in the stalls the bundle situation is not exactly peachy either.
I didn’t set the bloody fire alarm off. And I’m not in control of the bundle situation either.
The reality is that nobody has any power to control what goes into the bundle because the LA control the index. There is no opportunity to liaise about indexes because the index arrives late if at all and is inevitably wrong because it has been completed by some administrative assistant who wouldn’t know PD27A if you slapped them in the face with it. My experience is that in 95% of cases anything that has been ordered to be disclosed or produced is put in the bundle automatically by the LA without reference to anyone else. And in the 5% of cases the LA unilaterally selects which documents go in, using the PD as an excuse for not putting in documents at the request of any other party forcing the other parties to bring copies of the excluded documents to court and to make an oral request for permission to rely on those documents. Perhaps more cordial liaison between solicitors goes on than I think, but invariably when I chase an up to date index my instructing solicitor is tearing their hair out trying to get any damned index at all for me, let alone a conversation with the LA about what documents should go in it.
So yes, I hate it when the fire alarm goes off, but why am I in detention?
My day to day bundle grumbles aside though, my real concern is this : if you want to prove important facts that are in dispute you need primary evidence. You need contemporaneous records. You need witness statements from independent witness statements. Not summaries of documents or positions in not more than 5 pages. You need as much evidence as you need. The PD of course allows for the court to permit the inclusion of such evidence in the bundle where appropriate, but my anxiety is that when the Presidential ire is so starkly expressed as in this judgment (and when it has the starred care plan-like imprimatur of having been specifically cascaded meaning it is “to be noted and followed”) some courts will interpret this as a directive to exclude material from bundles that is properly necessary. And that LAs, anxious not only to obtain their orders but also to avoid a trip to Juvie and a wasted costs order for having filed a bundle of 351 pages, will adopt the role of gatekeeper of the bundle, squeezing out what they view as extraneous documents in order to ensure that the core documents (i.e. their evidence) fits in.
Look, I don’t want to point the finger. But the sprinklers are going off and “it wos the LA, Miss!”
However, it’s as well when criticising others not to forget the minor fact that the building is actually on fire. That is to say, bundles are (understandably, dare I say it) not the top of the priority list for overstretched LAs. Getting final evidence of sufficient quality prepared and filed within increasingly tight timescales is understandably higher up the list than the pagination of said evidence (although in some LAs not, it appears, quite as high up the priority list as it ought to be).
Anyway, enough analogies.
I’ve also been hugely exercised by the Foolscap v A4 references in Re L. What are these things called foolscap folders and who is filing them, I thought last week. So exercised was I by this, fearful that I might inadvertently commit a contemptuous stationery related transgression, that I did some research on the topic. Suesspicious Minds is fearful that the folders we all routinely use are the “wrong kind of files” – but fortunately I think he is wrong (this is the one and only time I will ever be able to say that as he is NEVER wrong).
I am just old enough to remember Foolscap paper. Foolscap is a bit taller and a bit narrower than A4. See here.
Most of the lever arch files on sale in various outlets are A4, but some places sell both A4 and Foolscap lever arch files. There is generally a far wider range of A4 than foolscap lever arches. All the files I could find in chambers either said “A4” on them or were identical in size to those marked with “A4” (phew).
A4 paper fits in a foolscap file and so a foolscap file can be used interchangeably with an A4 one.
See the product description on the Ryman’s website :
This Ryman Colour Lever Arch File is a foolscap ring binder for storing A4 documents.
Our most popular lever arch file, this A4 folder operates by a lever arch mechanism with paper clamp for extra capacity and easy removal of papers. There is also a handy write on spine index strip for easy labelling.
The dimensions are not very different – a bit taller, a tiny bit narrower. They give a little bit better protection for you papers as the corners are not so close to the edge of the file. They look identical to the A4 files we are used to seeing, and I don’t think you would notice the difference unless you stood them side to side.
Critically, these files are cheaper than an A4 folder (£3.29 v £3.99). There are limits to my research so I don’t know if this is the case at other suppliers, but since we know both LAs and solicitor firms have been attempting to cut their costs of copying and bundle supplies by reducing the quality of files, delivering counsels brief electronically, and increasingly often using treasury tags in lieu of a file – it would be wholly unsurprising if the use of foolscap files was on the rise because they are cheaper and do the job just as well.
The upshot of course will be that more LAs will adopt the treasury tag approach and we will forever more be consigned to the last page of our bundle floating around in the bottom of our bags, and damp cornered, torn and unturnable bundles being brought out of suitcases on rainy mornings. I don’t foresee my bundle rage subsiding any time soon.
For the avoidance of doubt, I never set off the fire alarm at school. I was a “keener” as they say in these parts.