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, [2013] 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.
[my emphasis]
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.
Notes :
For the avoidance of doubt, I never set off the fire alarm at school. I was a “keener” as they say in these parts.
If ignoring PD27A is a grievous offence, why is it OK for my local court to ignore FPR 9.12 & 9.18 as a matter of policy?
If that is happening it shouldn’t be. What is actually happening?
This court is setting a date for an initial Directions Hearing earlier than the date the FPR specify for the First Appintment (initial application for a financial order in Ancillary Relief) or First Hearing (for variations of financial orders). According to the court:
“Applications to vary periodical payments are normally listed for an early directions hearing first as they often require an early order”
And they also say:
(Applications when received are) “referred to a Judge for listing
directions. The reason (they are) referred to a Judge is that it is the practise in this court and also some other family courts to list applications to vary financial orders for an early directions hearing.”
The justification for this is:
“Usually applications to vary are made because there has been a change in circumstances such as someone has lost their job and they are unable to comply with the current order. Therefore, at the directions hearing the financial order can be amended, pending a final decision at a more substantive
hearing.”
The court has an obligation to issue the application and set a date within 4 days of filing the application, this they are not doing.
They also have an obligation to send out a blank financial statement for the parties to fill in, file and serve in the case of a variation within 14 days of the application being issued. This blank statement is not being sent out.
I have pointed out that the court can’t make any decision without having the financial statements and associated documents, so an early directions hearing is pointless.
The response I got was:
“… applications to vary are referred to the judiciary for directions in case of financial hardship and the court will follow directions ordered by the Judge.”
How can the judge assess financial hardship if there’s no financial statement before the court at the time of the first hearing? This practice is causing delay, adding another hearing, with its associated costs, and is in blatant breach of the FPR.
well the FPR do contain a generic provision that enables the judge to vary the rules or timetable provided for where appropriate so I don’t think its a breach per se. If there is a reason to think there may be financial hardship behind an application to vary (usually this is the case) I can see the sense in bringing the matter in early to take a look at it – possibly even without Forms E, particularly if in person. Don’t really understand why Forms E aren’t going out though.
I’m afraid slow listing on issue is a feature of most courts these days. Big ship, not many sailors.
This is not the exception, this is the rule in this court:
“Applications to vary periodical payments are normally listed for an early directions hearing”
“it is the practise in this court and also some other family courts to list applications to vary financial orders for an early directions hearing.”
If this change in procedure is necessary, it’s necessary for everyone and they need to get it approved by the Family Procedure Rules Committe, not make the rules up as they go. The FPR Committee has decided the rules and any court must have a very good reason not to follow them. If so they need proper authority for a blanket departure from procedure and they need to publish the modified rules. I’m pursuing the questions of authority and where it’s published.
Brilliant Lucy. Can this be cascaded upwards?
I always thought the school fire alarm was provided for prankish purposes . . . are you saying it had some other use?
A cheap compromise is a treasury tag with a sheet of stiff clear plastic with holes in top and bottom. See what you learn working in the public sector!
I’m getting them with a treasury tag and a thin sheet of coloured paper instead of file dividers – but as the coloured sheets are exactly A4 they are no help at all!
216mm by 343 mm is foolscap. (I had to look it up at the time, having never used foolscap paper at school). [But ah, I see now that there are also foolscap octavo and foolscap quarto which are as you describe, taller and narrower than A4)
That’s the size of our standard lever arch bundles, and I’ve never seen a different size in any other LA. If you lay a piece of A4 paper on top of it, you can still see bits of the bundle. This judgment is saying that only lever arch files that are A4 size are acceptable – i.e if you take your lever arch file and put a piece of A4 paper on top of it, you should only be able to see the paper. [I’d be delighted to be wrong – perhaps it means bundles that can fit A4 paper in them, but I’d be utterly amazed if anyone had been using lever arch files that weren’t big enough for the paper that was going in them]
I suppose that the West country might all be using A4 bundles, in which case you are fine and ahead of the curve. I’ve never come across any differently sized to the 343mm x 216 mm that we use.
(God, I am vexed that I am driven to even give a damn about what size lever arch files matter)
http://www.vingle.net/posts/59005-XKCD-Someone-is-WRONG-on-the-internet
[That someone might be me…]
I think the answer is that an “A4 Lever Arch File” is something purpose designed to store A4 documents, but is bigger than A4 – it gives a protective buffer around the page edges.
A “Foolscap Lever Arch File” may be used to file A4 documents as well but it is taller than one designated as an “A4 Lever Arch File”. I don’t think a “file of A4 size” means A4, it means an “A4 Lever Arch File” as opposed to a Foolscap one. I think that most of what we would generally describe as an A4 lever arch file are “A4 Lever Arch Files” but sometimes people use “Foolscap Lever Arch Files” without recognising the fundamental *cough* difference.
I don’t think that a file of exactly A4 size exists (except maybe those ridiculously thin ring binders which fit about four pages in them).
Perhaps we should ask for further guidance on the issue? All we need is a test case… 😉
I want to be in the Delinquents Court. I really, really want to be. I have a lot to say to the Delinquents Court.
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I am old enough to remember what ‘foolscap’ paper was and it was longer than A4. I haven’t seen it for years so can’t understand why there would still be a foolscap size file manufactured. I think the clue is here where our President says:
‘This is not some mindless pedantry. There are reasons for the stipulation, each deriving from the fact that an A4 lever arch file, although it contains as many sheets of paper, is not as tall as a foolscap lever arch file. First, a standard size bankers box can accommodate 5 A4 lever arch files, but only 4 foolscap lever arch files. Second, many judges and courts have trolleys or shelves arranged to accommodate A4 lever arch files, the purpose being to maximise the number of shelves (and thus the number of files) that can be fitted in any given space.’
So, if your file fits those dimensions, you’re OK. I hate to take issue with mindless pedantry but I’m not sure foolscap was what he meant – just a file too big for his shelf or his banker’s box (uh oh, more tape measures out).
Damn you Julie. Now I have remembered the eternal conundrum of why boxes used by lawyers are named after another profession…. How many bankers can you fit in one anyway?
If I were a mindless pedant, I would be troubled by placing the apostrophe in banker’s / bankers’.
How many hamsters does it take . . . no, perhaps not.
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This is ludicrous – so we have to work out what size the President’s shelves are to know what size lever arch file is okay?
A bankers box is 12inches by 15inches by 10 inches. And the President says that it fits five of the bundles that he wants, but only four of the WRONG bundle.
God, I have to do maths now.
12 inches by 15 inches by 10 inches is 30cm by 37.5cm by 25cm.
The ‘standard’ lever arch file that I’m using is 31 by 29 by 10cm.
I’ve gone to my shelf and measured the size of 4 lever arch files next to each other – the only dimension that really changes is the 10cm one (how thick are their spines all lined up together) Not rocket science, four are 40 cm, and five are 50 cm.
That would mean then that four ‘standard’ lever arch files are 31 by 29 by 40cm. And five ‘standard’ lever arch files are 31 by 29 by 50cm.
And if we are trying to squeeze them into a box that measures 30cm by 37.5cm by 25cm
We can see that for FOUR, the lever arch files are a bit bigger than the dimensions of the box – but let’s assume you can get them in, but you might struggle to get the lid on. [The 37.5cm of the box has to be the 40cm of the files, the 25cm of the box has to be the 29cm of the files, and the 30cm of the box has to be the 31cm of the files]
But for FIVE, it isn’t going to work, no matter how you try to juggle it. Every dimension is short and one of them is at least 10cm short.
THUS, if you measure your lever arch file and it is 31 long, 29 across and 10cm thick(the spine) they ARE the ones that the President is banning.
Or if you want to do it by eye, look inside the lever arch file and there’s about an inch gap between where the edge of the paper and the spine. Those are the ones that are banned.
It seems that (much like a survey in the Guardian today) it is really thickness that matters.
Oh god. But is your base assumption that all bankers’ (banker’s / banker’s’) boxes the same size a sound one?
Anyway. I am going to post some pictures my reconstruction now…pic 1 is 5 x lever arch in a bankers box – they stand up in them but you can’t put the lid on (and note some describe themselves as A4). pic 2 is 5 x lever arch laying flat in a stack. They fit. The lid goes on. So I STILL think that they are ok. I think it is the longer ones which are not.
PS yes I have checked, no confidential info in pics!
Lucy – think outside the box! If the courts went paperless like the rest of the business world size wouldn’t matter.
I really feel for the next LA who are going before the President. I have no idea whether their lever arch files are okay, or whether they are going to get Re L thrown at them. Perhaps there should be a President’s range of stationery, so that we all know they are acceptable.