Enough!
I need protection….from lips and zips and drip drip drips…
I have recently exchanged a dozen emails (in each direction) with a litigant in person about the drafting of an order that was agreed in court. It does not matter, I have concluded, how much you explain that you are just being asked to convert the judge’s oral answer to writing – a litigant in person is still likely to raise new points or dispute things that were uncontentious in court in response to a draft order. Fortunately this LiP was very polite in his many emails. But still, I have spent longer in this case on the drafting of the order – and failed attempts to agree it – than I spent at court (a full four hours where it should have been one). I know the ship has long sailed on HMCTS actually producing its own orders (notwithstanding the provisions of the CAP which anticipate the judge will do her own orders) – but I am seriously wondering if it is really too much to be expected to exchange emails with LiPs in this way before e-filing. Experiences like this erode both my goodwill and my profitability because it is all more time spent for free – and in light of the current state of the family bar we have to maximise our capacity to spend time on paid work in order to begin to minimise the reduction in income. There is less space for pro bono work when we do so much without any recompense at all. I spent an ENTIRE evening drafting court orders and approving other people’s draft orders the other week, finishing at 11.30pm (with most of my oppos also being glued to their email for the same purpose). It is VERY difficult to say no, and since CAP / CMO a handwritten order prepared at court is really no longer feasible or acceptable. I often draft at court, but this usually results in me handing my laptop around due to an absolute 3G blackout, which is less than ideal.
On top of that we have another omnibus suite wardrobe thing – this time in relation to non-mols. Yes, the summer respite from cascading is over – personally, I haven’t unzipped the bodybag yet – It’s been a looong day and I need to offload first… We have guidance on non-mols too : “Don’t make indefinite orders”. Really? They had to ask that question? And ex partes should be made only until the return date. Really? That old chestnut? Has anybody yet worked out that this has serious resource implications? It means every non-mol will now require personal service twice. It means that in all those cases where the applicant is in person the BAILIFF will have to personally serve twice. It means that for every difficult to serve / evasive respondent there will be an applicant who is at risk of a break in injunctive cover.
I went to Scarborough last week to speak at the NAPO Conference (Family Court Section). We had an interesting discussion about McKenzie friends and attitudes to them by CAFCASS practitioners. I was interested to hear that there seem to be pockets where paid-for McKenzies are more prevalent – London and Midlands mentioned in particular. Certainly they are not very common in Bristol. One of the things I pondered was the need for CAFCASS and its practitioners to be more transparent in their ways of working to build confidence in a user group whose first source of information about their work and ethos is likely to be information sourced online, most of which will be highly critical of their perceived corruption, bias and poor practice. Hoping my FOI requests to CAFCASS and HMCTS will be back soon…I returned from Scarborough with an unidentified massive carbuncle on my hand, it was either a poison dart from one of my stalkers or an infected sand fly bite. It has been quite effective distraction for my opponents so far this week. I just have to wave my left hand across their field of vision and they lose the thread of the submissions. And when I referred at one point to the metaphorical need to “lance the boil” I got a most entertaining reaction (think Austin Powers, moley moley moley).
Still no commencement order on s11 by the way…
On to more happy things : the super amazeballs Andrew Pack (Suesspicious Minds) won the Legal Commentary award at the Jordans award ceremony last week, which is ACE. We all had a fantastic night, and it was all a bit of a love in really…
AND finally, a pic of some beautiful flowers that I found on my desk after court, from my hubby who didn’t forget our wedding anniversary after all! (my kind of stalker) They’re too lovely not to share. 🙂
Anyway, back to my non-mol. What I need is not some woolly unenforceable order, I need a specific provision prohibiting all communication by email, direct or indirect, including but not limited to cascades, guidance, templates, legal updates or communication from any litigant in person. Indefinite would be nice, but I’ll settle for until next week…
Beautiful flowers. Can we clone him?
Unfortunately many cafcass, LA’S, ss are not warming towards mkf’s. Yes, many are rogue but a few of us don’t deserve to be tarred with the same brush.
I think that there is a real defensiveness, which arises from the high level of very personal criticism that is made of CAFCASS officers, and from genuine safety concerns. Sadly I think that sometimes prevents CAFCASS officers from recognising the use that can be made of genuinely constructive and calming mckenzies, and they don’t consider bringing them into discussions when it might actually be useful. I don’t think that happens all the time but I am sure that there are opportunities lost.
I have found that CAFCASS & social services are usually quite happy to involve a McKenzie Friend who is as you say genuinely constructive and calming regarding matters.
In fact referrals are not uncommon.
Judges similarly, plenty of the more competent barristers and solicitors are also fine with this.
It is usually the weak-skilled who might have a problem, initially at least.
Thank goodness for LiPs – they keep us all honest and their existence demand that courts live up to their vaunted prospectus. Courts and the legal profession are perhaps viewed by Joe Public as little different to bankers – both have access to an exclusive system and how it works – and both never see the inside of a jail cell.
Ha. Some lawyers do see the inside of a jail cell, but fortunately pretty few! I take your point though – and I agree that LiPs do make us reflect on our practices which can be no bad thing. However they do also (unintentionally mostly) make the system less effective on a day to day level. That is not their fault, but we are operating in a time when we are having to adapt our ways of working – and we haven’t yet finished retuning the engine (sorry, rubbish metaphor).
Leaving the court without a copy of an agreed draft is a fatal mistake. If there’s any disagreement you need to go back before the judge to sort it out. I would always make sure to have a copy of the draft order before leaving the court.
Can you point us to this guidance on non-molestation orders?
Ah, no this was a scenario where an order is constructed in court and just as you are leaving the judge says – Ms Reed will you draft the order? Absolutely if I’m drafting at court I will always try and finish the draft at court. And I certainly wouldn’t leave without a copy.
The guidance on non-mols will be up on the FLBA site shortly…http://flba.co.uk/blog/2013/06/28/guidance-locator/
Brian is entirely correct, it is best not to leave the court without the draft order being agreed by the parties and handed to the court, otherwise it is a license for trouble.
It is not only LIPs that get it wrong. Barristers and solicitors will at times when drafting an order, forget or not reflect what has been directed by the judge.
Judges should be instructed not to let parties leave until the draft order has been agreed and looked over by them. Otherwise it is a recipe for disaster very often.
At least you are replying to the LIPs emails, I am aware of occasions where barristers simply will not reply to any queries of their draft orders from LIPs, however polite and sensible.
Some judges are passing the buck, causing unnecessary problems.
Of course that is best, but it isn’t always possible, particularly with the CAP orders.
And of course advocates also sometimes forget or misrecord what has been ordered.
I usually do respond to LiP emails and do so with courtesy but I am beginning to wonder if it is sensible. It is a significant extra workload and does not really assist anyone.
Judges are passing the buck but that is because they are under enormous pressure themselves – because all the LiP cases take so flipping long!
And ex partes should be made only until the return date. Really? That old chestnut? Has anybody yet worked out that this has serious resource implications? It means every non-mol will now require personal service twice.
Ex parte orders are very serious business. Of course they should only be made until the return date when the other side can be heard: audi alteram partem as we used to say. If for good reasons the order has not been served, then fine, extend it until a later date when it should have been done.
I agree an ex parte is very serious. The system that is in my experience usually adopted works quite well and fairly – you make the non-mol for a period of (say) 6 mths or a year but you bring it back after a week, to consider if it needs to be varied, discharged or continued. There is no presumption it will continue but if it does then you avoid the time, cost and risk of re-service. £100 for a process server is a lot of money to some people. And I dare say a respondent probably doesn’t want a process server turning up on his door more than once if at all possible.
Q. Do LiPs maybe unwittingly expose problems within the Legal profession? For example the notorious letter writing deluge. I’ve worked in fast paced high level commercial roles- the (Legal Aid) Solicitor’s preference for posted only letters every fortnight in 2014 is a joke. No business could survive with such a practice. Except in the most extreme cases the LiP comms level is probably more in sync with the business world as a whole. (Just saying).
2. Another example would be the expectations of Court and standards of truth and justice. The LiP is in a sense an idealistic client: we expect the truth to out, fair hearings etc. We definitely do not expect Solicitors to lie in Court and we hope/expect that a Judge will a) listen and b) actually decide something. My guess is that to experienced lawyers this sounds hopelessly idealistic and naive. Fine. However why is it naive? What does it say about the system if this is naive? Again to use a business model any other service these days would do market research. Anyone going into court would be questionnaired – ‘how was that for you?’ and targets would be set for customer service etc. I suspect the LiP phenomenon viewed another way is the closest the courts have come to market research and it’s not pretty. Is it them or are they merely holding a mirror to the Courts arcane and unintelligible processes and practices? Are LiPs expectations so high? Methinks not.
The truth is that some lawyers and some LiPs have a real problem with verbal diarrhoea. Why write one letter when four will do? In most family legal aid cases there is no financial incentive to write letters – there is in fact a disincentive as they are paid by the case not by the letter. So I don’t think that explains the phenomenon you are describing.
As for your expectations of the court why is a) or b) idealistic or naive? It’s what the system is all about. Solicitors may on occasion lie in court (I think that would be very rare but am sure it happens as in any profession), but if they do it is a very serious matter. However telling the court what your client says is not lying. It is representing. Telling the court that you have (for example) sent a letter to the other party when you haven’t in order to cover your back is lying.
And I agree more research on the experience of LiPs is desperately required – it would help drive better practice and make the system more efficient and fair.
Regarding Letters my point is that 1 letter every ten days (my experience in a good month) is a woefully slow means of communication that could not survive today in any other industry. If my experience is typical then it would also seem that email has never been invented (I email properly drafted letters that I send as attached PDFs btw). Any other business in pretty much any other sector would go under very quickly. So I think the stereotypical voluminous LiP scribe is only at best one extreme. The other extreme is the Solicitor who thinks one posted letter a fortnight is a viable means of communication in the 21st century.
well there is no right number of letters – it depends on whether anything needs sorting / communicating or not.
but yes email is more efficient. that’s not controversial is it?
Apparently it is controversial where my ex’s Solicitor is concerned!
Oh dear. Well, a diminishing minority I think.
Although, having said that – in some cases sols use letters because email can encourage vast amounts of responses each of which has to be read considered and responded to, instructions taken etc. This can increase costs for clients massively because each piece of work is billed for – whereas letter communication somehow seems to dampen that down somewhat…
I see your point. Actually I think this could be one of these issues that seems small but is actually fairly mammoth. If sols budget and account for their business activities with client communication working as a currency this is a matter of some importance. Similarly if LiPs tend to over index on the comms levels causing ill feeling and despair this need to be looked at. It may sound a bridge to far but where Legal Aid is concerned then perhaps it would be better to actively legislate for this. Would it be beyond the ken of the legal profession to work out a reasonable but finite amount of letters/correspondence per case? So an LiP served with a Non Mol for example gets a strict schedule for letter submissions ( a bit like filing and serving statements) and the sols also get a schedule with a stipulated response time built in. I’m sure it would be more than possible to have a online courts/comms centre set up to do this kind of thing quite easily. It would also make it quite easy for the Judge to view the correspondence where necessary. Is that mad?
It’s not mad but I don’t think it’s workable.
I suspect that the per case fee that sols get is notionally worked out on the basis of an approximate “reasonable” amount of letters per case. The reality is that one case is very different from another and some cases require masses of letters, whilst others really don’t. I don’t think you can say from one case to the next what correspondence “needs” to be sent. I suppose an online mechanism could be devised – there are online tools for separated parents to communicate over contact for example. But some correspondence should not be seen by the judge because it is without prejudice. And frankly judges would be overwhelmed if they had to read all the correspondence.
How could you possibly legislate for an amount of correspondence? Who’s to say solicitor’s don’t advise their clients to go for a non-mol because they know it means they can then charge for every ridiculous piece of correspondence which could have been done by text between the parties?
When trying to make arrangements I’ve seen responses from solicitors saying “the proposals are not agreed, but our client is willing to consider any reasonable proposal”, i.e. our client isn’t going to make any suggestions, but is going to wrack up your bill and their own in the process.
The term is “letter tennis”. Various other tactics are to send letters to the non-resident parent so they arrive just before a contact weekend, or send emails at 4:30pm on a Friday so the recipient cannot respond before the weekend.
Incidentally emails and other electronic means of service are covered by Practice Direction 6A http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06/pd_part06a#4.1
Thanks. Actually I’ve been on exactly that Friday Post train. I thought it was just a delaying tactic but they profit too beyond just making it longer? All I was suggesting was that if 1. Letters are a well established ‘currency’ in a solicitors budget and case planning and if 2. There is a problem because LiPs are reputedly causing havoc by the volume of their free correspondence then you must be able to quantify correspondence so it helps everyone rather than hinder. I suspect the sols are yelping about LiPs correspondence because it screws their economy of Letters. To put it crudely for my case it might have helped to go ‘Right. She’s Legal Aid and you are LiP. She gets £x for whatever (however Legal Aid works) you get the opportunity to write x letters which is also what we estimate to be the requisite number to sort your issues out. Our next hearing is on Y date. You will submit your letters on these dates. Solicitor must respond by these dates. If Solicitor fails to respond in fact or in substance then costs for said letter to be withheld. Go figure! If you cannot sort it out in 10 letters each over 6 weeks then we will review at next hearing.
no, i don’t think they are currency where legal aid is concerned – they are a cost. they can be used to bump up client costs by disreputable solicitors for privately paying clients. but the point is that every letter sent requires reading and response. and that costs whoever is privately paying. if it is a legal aid lawyer it costs them because its unpaid time.
i am not a solicitor so the way i’m paid is different. i’m paid in 2 1/2 hr units for time spent at court – with no specific payment for time spent in prep or after the hearing drawing up orders or liaising with opponents / lips about the wording of the order. we don’t get paid for doing those tasks after court and when a LiP tries to raise new issues after a hearing when the barrister is only trying to agree the order it causes real problems because our brief is only for the hearing and we don’t conduct the case. that distinction between counsel and solicitors is lost on most LiPs (understandably) even when explained.
Point taken. By currency I just mean of monetary value. As you say for Legal Aid Solicitors it is a cost. That’s why the LiPs 4 letters a week is so infuriating for them. By giving each side at the start a clear delineation of the amount of correspondence allowed it addresses the problem on both sides. I also think it gives clear incentive to say ‘Don’t muck about. Sort this out.’ I sympathise with your Counsel predicament. If I had my way Solicitors would not have rights of audience in Family cases and any Legal Aid would end for them after the Non Mol application. Thereafter all Legal Aid goes to barristers and mediators. See? You should listen to us LiPs!
Sadly, no amount of telling a LiP that they have a cap on the number of letters will have any impact (I’m generalising here which is slightly unfair on some LiPs). But often, if a LiP feels they “have to” write they will do so. For a LiP *everything* is a priority and must be dealt with NOW. That isn’t meant to be a criticism of LiPs – it is the reality in many instances. No doubt there are some who will be compliant but my guess would be that this will mainly be those who wouldn’t have sent a gazillion letter in the first place.
Can I be a bit cheeky? I don’t think it’s asking for legal advice as such but I have a question about Statement writing. I’m Applicant in a Contact/CAO application. My ex cross applied with relocation. She did her Statement first. I have to write mine now. Is the expectation I should simply work all my arguments into a paragraph by paragraph cross reference to her Statement? Or can I spend a bit of time upfront laying out my own case before going into my vigorous rebuttal of her Statement? I don’t want to just spend the whole time in rebuttal mode but I’m worried about it getting too long. What would be max length for a Contact Statement? Her Statement is 9 pages which seems cursory and short to me but my guess is that part of my task is not to become the verbose LiP that the Court etc might be fearing. Is that Legal Advice? Thought I’d ask but no offence will be taken if you tell me to clear off!
Hi Andrew,
What I will say is of general application. It is often sensible to set out your own case first, and then respond to the other parties own statement after. You might feel you need to respond to each paragraph, but if you have covered it already in your previous section there is no need to repeat yourself. There is no magic length to a statement – it is a question of finding the right amount of detail. Remember the judge is a human being with a heavy workload so do not drown the important points in detail and pages and pages of repetition. Just keep it clear, calm and to the point. If in doubt stick to the welfare checklist.
On relocation you usually want to cover how reasonable / thought through the proposals for going abroad are, including but not limited to contact proposals. And the motivation of the move. And the impact on each parent and the children of grant / refusal of the application.
Try and find a logical order – often chronological or by issue, and always number your paragraphs and pages. Use headings if that helps.
PS I’ve edited your surname out.
Many thanks for this. Much appreciated. Yes, I noted your ‘Welfare Checklist’ approach in your book. I am assuming extensive use of rhetorical flourishes are discouraged! Shame. I do love a rhetorical flourish. I’ll do my best not to go ‘Bon Jovi’ – “You give l-u-u-u-uv a BAD name”! Wish me luck.
Yes, I mean unless your judge is a known Bon Jovi fan (seems statistically improbable) I wouldn’t recommend that.
And frankly, if your judge is a known Bon Jovi fan you might want to ask him to recuse himself on the grounds of very poor judgment…
PS I’ve edited out your surname AGAIN! Please stop using it in connection with specific proceedings otherwise I won’t publish.
Phew! Statement filed and I generally avoided the Bon Jovi references. I’ve seen you’ve posted some stuff on Bundles. Fortunately I do not have to prepare these but I have got the Bundle Index through for approval from the opposing Solicitor. I have a question which is whether I have to ask now for them to include a document, or whether I can leave it till the review hearing? It’s quite exciting because they have quoted, both in correspondence to me and their filed statement, from an email from my son’s School head teacher to them. I have discovered from the School that the quote has been edited and the full email twisted beyond reason. Now I don’t think I need advice on Litigation Privilege which I have researched and it would appear pretty clear cut that the ‘cherry picking’ or collateral waiver rule would clearly apply here – hence they must produce the whole email. My question is procedural as to whether I must now write and demand it is included in the bundle or whether I wait to bring it up in Court? Also any general tips on how to present such matters in Court as I’m expecting pretty fierce resistance from Judge and oppo Solicitor to even allow me to engage on the subject of Legal Professional Privilege. My guess is also that her Solicitor could be in quite serious trouble as she’s effectively doctored 3rd party evidence…Sorry if I’m getting into the realms of legal advice but I’ll trust you’ll tell me if this is the case….
Yes it is going into the realms of asking for advice, which I can’t do.
In general terms if you want a document to be disclosed and to go in the bundle usually best to ask for it first and if not forthcoming ask the judge. Also in general terms if someone refers to a document in a statement you can usually expect to be given the full document on request. It doesn’t sound as if privilege is likely to be relevant. Try not to get too “excited” (to use your word) about apparently clever technical points. That has been the downfall of many lawyer, and of many more litigants in person.
I don’t think I can go further without advising you. And it would be wrong for me to do so as I don’t have all the information. My generalisations may not apply and my impressions may be wrong.
Thx Lucy. Yes I have it now – no questions asked. Not too excited but it is good to see clear editing of 3rd party comments to the point of ending sentences half way to create the desired effect. It’s funny that I’ve spent weeks looking at Privilege case law and when asked to include document in bundle they simply went ‘OK’. ! …and breathe…
It’s really helpful to realise that legal aid lawyers are working on a piece rate basis. One of the main bug bears of Joe Public is that they can struggle to actually get their solicitor to communicate with them. It is understandable now
On a different point I like Andrew ,believe that the court system needs to catch up with the real world and use focus groups , surveys etc. For a Lip its like turning up at A&E in immense pain and being told there is no doctor available , get a book or Google then operate on yourself. I can also see the difficulties lawyers are having. It is increasingly frustrating for all users, is this not the time to consult those affected?
It looks like it won’t be too long before the distinction between barristers and solicitors becomes obsolete, if either profession is to endure.
The U.S. attorney model may be next.
I was at a court in London recently and outside on the bus shelter was a large advertisement for a certain Henry Hendron, public access barrister, who according to the advert is “tenacious, determined and impressive”.
It seems this is where we are heading.
Although this particular advert had lost a bit of its impact, as somebody had quite unhelpfully scribbled a rather fetching moustache on the chap in red pen.
Ah, you mean this Henry Hendron? He who “has developed a reputation as one of the Countries leading public access barristers” (sic)? I guess he’s not sure which country…? 😉
It would appear that the President of the Family Division is against you as regards the duration of ex-partie orders.
5 The relevant principles, compliance with which is essential, are as follows:
(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.
(ii) It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 4.30pm on 19 November 2014).
(iii) The duration of the order should not normally exceed 14 days.
(iv) The order must also specify the date, time and place of the hearing on the return day. It is usually convenient for this date to coincide with the expiry date of the order (eg, list the return day for 10.30am on 19 November 2014 and specify that the order expires at 4.30pm on 19 November 2014).
(v) The order (see FPR 18.10(3)) “must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.” The phrase “liberty to apply on 24 hours’ notice” is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply on notice (the details of which and the need for which must be set out on the face of the order) to set aside or vary the order.
(vi) If the respondent does apply to set aside or vary the order the court must list the application as a matter or urgency, within a matter of days at most.
http://www.familylawweek.co.uk/site.aspx?i=ed134189
Yes do keep up. The post was a response to those guidelines, rather than a random post constructed in ignorance of them.
I appologise that I was behind the times. Family Law Week was a few days behind you and I didn’t get that from your article.
Sorry for terse response. Your comment came at the end of a run of snarky ones, and I read it as another in the same vein. Perhaps it was not. 🙂
A misunderstanding on both our parts. Although I really should have twigged, given what you were saying!!
I entirely agree with your points regarding the practicality of implementing the presidents directions.
However, I do think the thrust of his PD is right.
Non-mols have become very popular of late, 20% increase in applications and orders made since April 2013 – I wonder why that is – Oh yes, that’s when the changes in legal aid came in, making a non-mol one of the few restricted ways of getting legal aid since the brakes were put on.
Is that right? I hadn’t noticed that statistic – but on one level it is not a surprise.
MoJ https://www.gov.uk/government/statistics/court-statistics-quarterly-april-to-june-2014 specifically Family justice statistics on Domestic Violence applications and orders https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/358227/family-april-june-2014.zip