BUNDLES AGAIN: JUDGES WASTING THEIR BREATH: “HOW MANY YEARS – DECADES – HAVE TO PASS BEFORE THOSE WHO KNOW BETTER AND WHO… ARE BEING HANDSOMELY REMUNERATED COMPLY WITH THEIR OBLIGATIONS?”

April 14, 2021 · by · in Bundles, Case Management, Conduct, Costs

Another post that adds to the dozens, if not hundreds, of cases about bundles.  The trial bundles were the subject of considerable criticism by Sir James Munby in  C (A Child) [2021] EWFC 32.

“I forebear from further judicial exhortation to comply with the Practice Direction. Previous experience suggests that it is merely a waste of breath“

THE CASE

The judge was hearing a preliminary point as to whether the court had jurisdiction to hear a mother’s application in relation to a child.  Having found that the court had jurisdiction the judge commented on both the bundle and the costs incurred in trying a prelimiary issue.

THE JUDGMENT ON THE BUNDLE (AND THE UNNECESSARY COSTS INCURRED)

    1. One final comment about this litigation is necessary. It concerns the costs that have been incurred thus far, in preliminary skirmishing about jurisdiction. In Wermuth v Wermuth [2003] EWCA Civ 50, [2003] 1 WLR 942, [2003] 1 FLR 289, a case concerning Council Regulation (EC) No 1347/2000, generally known as Brussels II, Thorpe LJ observed (para 34):
“… one of the primary objectives of the Convention is to simplify jurisdictional rules and to eliminate expensive and superfluous litigation. A divorcing couple that has to litigate the consequences of the marital breakdown is not blessed. The couple that first litigates where to litigate might be said to be cursed. In reality it is a curse restricted to the rich. Only they can afford such folly. This case is a paradigm example. Let me assume that the husband is a man of means. The wife is said to be destitute. Yet she has incurred costs here of £153,000 … The husband’s costs are put at £108,000 in this jurisdiction. By contrast the costs in Germany are said to be £11,000 for the wife and £2,600 for the husband. The inevitable comparison should give the specialist practitioners in London pause for thought.”
    1. In Moore v Moore [2007] EWCA Civ 361, [2007] 2 FLR 339, Thorpe LJ, in a judgment to which I was party, recorded (para 6) that the parties had spent about £1.5 million in legal fees, most of it in proceedings concerning the question whether the financial consequences of the divorce should be determined in Spain (as the husband contended) or in England (as the wife contended), an expenditure which he described as a “lamentable and grotesque waste of family resources” and (para 27) as “shocking”.
    1. In the present case the costs to date in this country as set out by the parties in their Forms H lodged for this hearing (I have no figures in relation to either Monaco or France) are, for M, £300,308 (of which counsel account for £134,520) and, for F, £591,464 (of which counsel account for £ 338,998).
    1. I interject at this point to note that, despite this enormous expenditure of lawyers’ time and effort, the Trial Bundle which was lodged failed to comply in various respects both with the Bundles Practice Direction, PD27A, and with the Statement on the Efficient Conduct of Financial Remedy Hearings issued with the authority of the President by Mostyn J, as judge in charge of the money list, on 1 February 2016. I focus on one matter in particular. Paragraphs 4.1 and 4.2 of PD27A specify what the Bundle is to contain and how it is to be arranged. Here, in breach of those requirements, the underlying documents being relied upon by M or F – such as text messages, tenancy documents, bank statements, official documents, lawyers’ party and party correspondence, etc, etc – were scattered throughout the bundle, being contained, for M, in pages B145-149, C18-117, 189-405, 426-464, 594-635 and, for F, in pages B19-59, 86-100, C130-163, 527-578, 665-688, though even that fact was not apparent from the defective index.
    1. As long ago as 2008 I made the point. In Re X and Y (Bundles) [2008] EWHC 2058 (Fam), [2008] 2 FLR 2053, para 8, quoting from a previous unreported judgment in a case where there had been serious non-compliance with the version of the Practice Direction then in force, I said:
“Most of the key documents, having originally been exhibited to various affidavits, were scattered through the bundle in neither chronological nor thematic order. The index to the bundle was virtually useless, as it did not condescend to list the various documents contained in the various exhibits. The consequence was that any kind of sustained pre-reading … in particular of the key documents, was virtually impossible.“
That precisely describes the situation with which I was faced in the present case, gravely exacerbated by the deplorable facts (a) that there was very extensive duplication, re-duplication and worse and (b) that many of the documents, as demonstrated by the fact that they were not referred to by anybody, were completely irrelevant to the issues before me. One small example of just how chaotic the bundle was is that the letters dated 2 June 2020 and 30 June 2020 from the Home Office were respectively at C191 and C451. Further comment is superfluous. I forebear from further judicial exhortation to comply with the Practice Direction. Previous experience suggests that it is merely a waste of breath: consider Re L (A Child) [2015] EWFC 15, [2015] 1 FLR 1417, paras 8-25. It is now more than twenty-one years since 10 March 2000, when the then President, Dame Elizabeth Butler-Sloss P, issued Practice Direction (Family Proceedings: Court Bundles) [2000] 1 FLR 536. How many more years – decades – have to pass before those who ought to know better, and who, as in the present case, are being more than handsomely remunerated, comply with their obligations?
    1. Both in Moore v Moore and again in the present case, the jurisdictional dispute is particularly arid for, as Thorpe LJ recorded in the first case (para 6), it was common ground between the parties, their Spanish lawyers and their eminent Spanish experts that, if the Spanish court were to take jurisdiction to determine these issues, it would apply English law. He speculated as to whether the driver for the jurisdictional dispute was “because the husband hopes, or has been advised, that the Spanish court, if seised, will misapply English law to his benefit” and commented that, when counsel for the husband was asked what advantage the husband might gain from litigating in Spain, “he was unable to give any positive answer.” In the present case, as already mentioned, it would seem that if M is indeed habitually resident in this country the court in Monaco will apply English law.
  1. Can nothing be done to prevent or at least ameliorate the folly of these huge and expensive cases that litigate about where to litigate?
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