MORE ON THE GREAT BUNDLE TAKEAWAY DEBACLE: A “DIFFICULT” QUESTION OF STATUTORY CONSTRUCTION FOR FAMILY LAWYERS

There has been a large amount of comments on the previous posts in relation to taking away of bundles after trial.  For family lawyers there is an even greater problem. The “joint notice” from HMCTS endorsed by the Bar Council and Law Society, appears to be contradicted, in part,  by the Family Procedure Rules

PRACTICE DIRECTION 27A OF THE FAMILY PROCEDURE RULES

“Removing and re-lodging the bundle

9.1

Unless either the court wishes to retain the bundle or specific alternative arrangements have been agreed with the court, the party responsible for the bundle shall, following completion of the hearing, retrieve the bundle from the court immediately or, if that is not practicable, collect it from the court within 5 working days. Bundles which are not collected in due time are liable to be destroyed without further notice. The local arrangements will specify the length of time that an electronic bundle will remain available to the court following a hearing.”

THINGS TO NOTE

The Practice Direction puts the duty on the “party responsible for the bundle” (not the advocate). It also gives a period of “grace” of five days and there is specific provision for the bundle to be destroyed.

Quite how this fits in with the HMCTS missive is difficult to see. No doubt the difference between the Note and the Practice Direction was something considered in detail by all concerned before that Note was sent out and agreed. It is a pity the Note didn’t give guidance as to which document is predominant – a Note or the rules of court.