In 2006, the President of the Family Division Sir Mark Potter issued a practice direction regarding court bundles. It was not the first practice direction in the family Court regarding bundles, Elizabeth Butler-Sloss had issued that in 2000.
The practice direction runs to some pages, and essentially sets out that court bundles need to be navigable, accessible and all identical. Not too difficult surely?
However, for anyone who has prepared a bundle you know it is not quite that simple. Bundles are often prepared late in the day due to pressures of time because of other urgent work. Documents are often late, confusion arises about what is to go in a bundle and what is to be omitted. Previous bundles are not always up-to-date, there is the inevitable phone call from the other side about missing documents and of course there is that damned old photocopier…
Since 2006 other judges have weighed into the debate regarding bundles. His Honour Judge Altman issued a further practice direction for the PRFD confirming the president’s direction. It also had supplemental provisions the removal of bundles from the court following hearings. The terms of this direction of 15 October 2008 are explicit and the warning given “Late or non-filing of bundles and Case Management documents under the President’s direction are likely to result in adjournment at the expense of the defaulting party.”
Altman, HHJ, is not the only judge who has reconsidered the issue of bundles and the sense of judicial frustration becomes apparent in the case law. Munby HH J, as he was then, gives vent to his frustration in the case of X & Y (Bundles), In Re  EWHC 2058 (Fam).
He talks about the case he heard 2007, where bundles had not been properly prepared. In that case he gives notice to the profession that cost sanctions as set out in the practice direction may follow. But, he accepts that that case was unreported.
In X & Y he makes his position abundantly clear.
“19. It would not, in my judgment, be fair or just to expose a practitioner to this last sanction without fair public warning having been given that the sanction is available and that it may be applied in appropriate cases. I have therefore not identified anyone involved in either of the cases to which I have referred. But the professions have now been warned. Next time a defaulter may not be so lucky.”
At the present time the whole legal profession has a lot contend with, changes to legal aid funding, the reduction of time for care proceedings, the rise of mediation and general uncertainty have meant that work pressure steadily increases, costs must be kept down and support staff or paralegals are thinner on the ground in most offices. Bundles are often way down the pecking order.
July 2012 saw yet another adverse judicial comment as Mrs Justice Theis, DBE gave judgement in the case of B v B  EWHC 1924 (Fam). The bundles before her were in an unacceptable state. In the judgement she makes various comments concerning the paucity of excuses and concludes saying:-
“29. I associate myself with the sentiments and frustration expressed by Munby J in In Re X & Y (ibid) which I expect is shared by the other family judges, not only those in the Family Division. His judgment at paragraphs 18 and 19 warned the profession of the consequences of default, as set out in Paragraph 12 of the Practice Direction. This judgment is another wake up call to the profession to comply with the Practice Direction because, as Munby J observed, next time a defaulter may not be so lucky.”
Judicial action with regard to lack of compliance for the bundle practice direction has been slow to materialise, but clearly the same level of frustration continues. The pressure that the Court service and the judiciary will find themselves under following the changes to family justice will only serve to place more pressure on those in the courts. The appointment of Sir James Munby as President of the Family Division and his desire to see compliance with previous practice directions must surely mean that time for those defaulters is running out. The new single Family Court will be a reality in April 2014 and the President has already indicated that bundles are high on his agenda.
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