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10.29Pilot PD 4B
1This is otherwise known as PD 13B for non-pilot cases. applies expressly to final management hearings.
2Case Management Pilot PD para 4.6(3). It will also apply whenever a hearing is listed for more than an hour before a district or circuit judge, and whenever it is listed before the President of the Family Division, the Chancellor or a High Court. The Practice Direction applies to directions hearings, interim hearings and also final hearings, with the exception of any urgent application if and to the extent that it is impractical to comply with it. Even where the practice direction does not strictly apply (for instance, in relation to a 30-minute directions hearing before a district judge), the principles that it sets down should still be adhered to where possible so as to maximise the effectiveness of the hearing.
10.30Where Pilot PD 4B does apply, paragraph 12 of the practice direction makes clear the penalty for failure to comply with any part of it may result in the judge removing the case from the list or moving it further back in the list, as well as adverse costs orders.
10.31For present purposes, the two most important aspects of Pilot PD 4B are those relating to the preparation of the bundle, and the preparation of the so-called preliminary documents to accompany the bundle. Each of these is discussed in turn below.
Bundles
10.32The general rule is that the party which is the applicant at the hearing (or the first applicant if there is more than one application) has the responsibility for producing the bundle for the use of the court at that hearing.
3Pilot PD 4B para 3.1. However, if that person is a litigant in person, then subject to any direction by the court, the responsibility falls upon the first listed respondent who is not a litigant in person or P.
4Pilot PD 4B para 3.1. If the first named respondent is P and he or she is represented by the Official Solicitor, the responsibility for preparing the bundle will fall to the next named respondent who is represented.
5Pilot PD 4B para 3.1. It is suggested that the same should apply if a litigation friend other than the Official Solicitor has been appointed to act on P’s behalf.
10.33If possible, the contents of the bundle must be agreed by all parties.
6Pilot PD 4B para 3.1. This can cause difficulties where one or more of the parties is a litigant in person (especially if they do not have access to a computer for purposes of reviewing and commenting upon a draft index). In such cases, while reasonable steps should be taken to try to agree the index with the litigant in person, a decision will need to be taken as to a cut-off point after which the process of agreement should be completed by the represented parties. Pilot PD 4B provides a timetable for the process of preparing and lodging the bundle, thus:
•The party preparing the bundle must (whether or not it has been agreed) provide a paginated index and, where practicable, paginated copies of material additional to that provided with the original application, to all other parties not less than five working days before the hearing.
7Pilot PD 4B para 6.1. It should be noted that this does not mean that a new, complete, bundle be supplied to each party in advance of a hearing, but experience has taught that it is much better for paginated copies of additional material to be supplied rather than relying upon parties to paginate their additional documents themselves. In such cases, it is almost invariably the case that at least one of the parties will end up operating from a differently paginated bundle at the hearing, with consequential delays and judicial frustration.
•Where counsel is to be instructed at any hearing, then if the bundle is not already in counsel’s possession, the bundle must be provided to counsel by the person instructing that counsel not less than four working days before the hearing.
8Pilot PD 4B para 6.2. •The bundle (with the exception of the preliminary documents if they are not then available) must be lodged with the court not less than three working days prior to the hearing, unless some other time has been specified by the judge.
9Pilot PD 4B para 6.3. Specific provisions are set out as to the appropriate office for lodging the bundle dependent on where the case is to be heard. It is always strongly advisable to confirm by telephone the day before the hearing with the relevant office whether the bundle has been received,
10Useful telephone numbers are given in appendix G below. as it is sadly very common for bundles to go astray in the system.
10.34Bundles should contain copies of all documents relevant to the hearing in chronological order, indexed and divided into separate sections.
11Pilot PD 4B para 4.1. They should also be paginated, either within the sections or separately – it is much better to paginate within sections because this allows for easier updating of the bundle. The sections required are as follows:
•preliminary documents (discussed at para 10.37 below);
•case management documents required by any other practice direction (in practice, at present, there are no such documents);
•applications and orders including all Court of Protection forms filed with the application;
•any registered, enduring or lasting power of attorney;
•any urgent or standard authorisation given under MCA 2005 Sch A1 (ie authorising a deprivation of P’s liberty in a hospital or care home);
•statements and affidavits (which must state on the top right-hand corner of the front page the date when it was signed or sworn
12See further para 12.14.);
•care plans (where appropriate
13See further para 12.14 and appendix E.);
•experts’ reports and other reports;
14See further para 12.54. •other documents, divided into further sections as may be appropriate.
10.35Bundles should be contained in one or more A4-size ring-binders or lever-arch files (each lever-arch file being limited to 350 pages), clearly marked on the front and the spine with the title and the number of the case, the court where the case has been listed, the hearing date and time, (if known) the name of the judge hearing the case, and where there is more than one ring-binder or lever-arch file, a distinguishing letter or number and confirmation of the total number of binders or files (eg ‘1 of 3’ etc).
15Pilot PD 4B paras 5.1–5.2. It is
not advisable to prepare even short bundles using treasury tags, because it makes it very difficult for the parties and the judge to take out or insert documents.
10.36Perhaps the key principle to bear in mind in relation to the preparation of bundles is that they should contain those documents relevant to the specific hearing in question, but should not contain more than those documents. Especially where a matter has been ongoing for a considerable period of time, the documents generated in the proceedings can start to run to a (significant) number of lever-arch files: it may very well not be necessary for all of the documents in all of the files to be before the court on each occasion, and having too many before the court will slow the process down. In this regard, it is useful to have in mind that for cases on the welfare pathway under the Case Management Pilot, the bundle prepared for the final hearing in the case must ultimately not only comply with these provisions, but also must: (1) not generally exceed 350 pages; and (2) in any event must not contain more than one copy of the same document.
16Case Management Pilot PD para 4.7(2).Preliminary documents and position statements
10.37For directions and interim hearings to which Pilot PD 4B applies, each party (ie not just the applicant) must prepare a document (or documents) which sets out – either within the document(s) or by cross-reference to another document that will be in the bundle before the court:
•a case summary;
•a chronology of relevant events;
•the issues for determination at the hearing;
•an outline of the likely factual and legal issues at the trial of the case;
•the relief sought at the hearing; and
•a list of essential reading.
17Pilot PD 4B para 4.2. Case Management Pilot PD para 4.6(3) draws the particular attention of those preparing for final management hearings to these provisions. 10.38In practice, this information is most usually set out in a ‘position statement’ (a term which does not appear in Pilot PD 4B, but which is common currency before the court and will be used here). Position statements are vital documents, and should be prepared even if Pilot PD 4B does not strictly apply.
10.39Directions regularly provide that position statements should be limited, often to no more than a page. Especially in the case of a position statement prepared on behalf of the applicant at a hearing, it can, though, frequently be difficult properly to encapsulate the necessary information in so short a space. If the position statement runs to more than two or three pages, a clear introduction should be given which sets out a route map so that the judge can identify clearly where the necessary information will be found in the statement. A sample position statement is to be found at appendix D below.
10.40Pilot PD 4B goes on to provide that ‘where appropriate’, the preliminary documents for a directions or interim hearing should include:
•a description of relevant family members and other persons who may be affected by or interested in the relief sought;
•a particularised account of the issues in the case;
•the legal propositions relied on, and in particular whether it is asserted that any issue is not governed by the MCA 2005;
•any directions sought concerning the identification and determination of the facts that are agreed, the facts the court will be invited to find and the factors it will be invited to take into account based on such agreed facts or findings of facts;
•any directions sought concerning the alternatives the court will be invited to consider in determining what is in P’s best interests;
•any directions sought relating to expert evidence;
•any other directions sought; and
•a skeleton argument.
18Pilot PD 4B para 4.3. 10.41These requirements stem from the judgment of Charles J in
LBL v PB and P,
19[2011] EWHC 502 (COP), [2011] COPLR Con Vol 166. in which the judge made clear that the direction of preparation of position statements and skeleton arguments ‘at an appropriate stage’ containing this information will be necessary in most welfare cases.
20Para 46. The
LBL case raised complex questions as to the scope of the jurisdiction of the Court of Protection, and the directions that were made in it therefore were arguably more extensive than will be required in many cases. Nonetheless, where Pilot PD 4B applies, it is incumbent upon the person preparing the preliminary document to consider whether it is appropriate to include each of the types of information set out above.
10.42In almost all cases, and whether or not Pilot PD 4B strictly applies, it is advisable for the position statement to be accompanied by a draft of the directions that the court will be asked to make. This will be important not just so that the court can see precisely what is being asked of it, but also so that the other parties can have sight in advance of the draft of the directions and – potentially – so that agreement can be reached upon the basis of one of the drafts.
10.43Whenever a directions hearing has been listed, the directions will usually provide a specific point by which the preliminary documents should be filed (whether by reference to a specific date or the period before the hearing). It is always advisable, wherever possible, for the preliminary documents to be served upon the other parties in advance of this deadline so that the process of negotiation can begin quickly.
10.44For final management hearings, the core bundle complying with the requirements of Pilot PD 4B must be filed no later than three days before the hearing.
21Case Management Pilot PD para 4.6(3). Otherwise, where Pilot PD 4B applies, the preliminary documents (and any documents referred to in them which are not already in the bundle) must be lodged with the court no later than 11am on the day before the hearing.
22Pilot PD 4B para 6.4. Pilot PD 4B provides that they should also be sent by email to the judge’s clerk where the hearing is before a High Court judge and the judge’s name is known;
23Pilot PD 4B para 6.4. most of the courts in which directions hearings are heard now also have dedicated email addresses for this purpose.
24Useful addresses are given in appendix G below. It is always better to err on the side of caution as regards lodging preliminary documents and to seek to ensure (for instance) that they have been sent both by fax and by email. Even where Pilot PD 4B does not apply, it is in any event
strongly advisable that care is taken to make sure that the documents are with the court by 11am the day before.