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The advocates’ meeting
10.45The Case Management Pilot has introduced a specific requirement for advocates’ meetings for cases on the personal welfare pathway.
1Case Management Pilot PD para 4.6(2). Such meetings are to be held both with the legal representatives for the parties and, wherever practicable, any unrepresented parties. Their specific purpose is:
•to resolve or narrow the issues to be determined at the final management hearing, to address the case and bundle preparation matters set down in Pilot PD 4B (see above) and to produce a draft order;
2Case Management Pilot PD para 4.6(2). •to resolve or narrow the issues to be determined at the final hearing.
3Case Management Pilot PD para 4.7(1). Note that an advocates’ meeting must be held at least five days prior to the final hearing unless the court orders to the contrary. 10.46Experience suggests that advocates’ meetings are likely to be most effective where:
•the advocates instructed are those with conduct of the case;
•one party’s representative (often that instructed by the Official Solicitor if the Official Solicitor is acting on behalf of P) takes the lead in setting the agenda by identifying areas of agreement and disagreement;
•one party’s representative takes the lead in taking a note of the order as it evolves;
•areas where agreement will not be reached are parked quickly, with an agreement to raise them before the judge;
•arrangements have been made in advance to make sure that, where information may be needed from (for instance) a social worker that social worker will be easily contactable so that information can be provided quickly;
•where interim relief is being negotiated (for instance, as to contact restrictions or the interim management of P’s property and affairs: see further paras 10.52 onwards below), a clear distinction is drawn between discussions as to the progression of the case and negotiations as to such relief and sufficient time is allocated to both. In many cases, what (say) the family members will be most concerned about will be about the interim relief, whereas what will actually be most important for the speedy resolution of the application as a whole will be negotiations as to case management orders. If all parties are represented by solicitors and counsel, it can sometimes be possible for both sets of negotiations to be taking place simultaneously, but in such circumstances it is important that all those involved in one set of negotiations are clear as to what the other part of the legal team will be doing.
10.47Careful thought and preparation – and chairing – will be required wherever one or more of the parties attending is unrepresented. It may in such cases be sensible to have a ‘pre-meeting’ beforehand between the legal representatives.
10.48If complete agreement is reached, then a consent order should be submitted for endorsement. Such a consent order should be submitted with an accompanying letter (jointly drafted if possible) outlining a short background summary of the case, the written details of each party who consents, and enough information to allow the court to decide whether to take the case out of the list and whether to make the proposed order.
4Pilot PD 4B para 11. This will apply by analogy given the wording of Case Management Pilot PD para 4.6(2). Where not all parties consent, an order can still be submitted together with details of the steps taken to obtain that party’s consent and, where known, an explanation of why that consent has not been given.
5Pilot PD 4B para 11. The likelihood of the court endorsing an order in such circumstances will depend greatly on whether: a) it has not been possible to contact the person to obtain their consent (for instance, because they are a litigant in person who has not given the proper contact details); or b) the person is actively objecting to all or part of the order.
Before the directions hearing
10.49Even where an advocates’ meeting is not strictly required, it nonetheless remains the case that it is sensible to seek to agree as many of the directions as possible or, at a minimum, to outline the key areas of agreement and disagreement. The process at para 10.48 above should be followed as regards providing a consent order to the court recording either partial or complete agreement as to the directions that are to be required, and the court should also be notified by telephone.
6Pilot PD 4B para 11. If the directions hearing is not going to be effective for any other reason Pilot PD 4B (where it applies) mandates the same notification procedure, by telephone and letter. It is suggested that it is sensible to follow as much of Pilot PD 4B as is possible whether or not it strictly applies.
The day of the hearing
10.50If the hearing is to take place in person, then (as noted above at para 10.26), it will often be the case that the parties are directed to attend one hour beforehand for discussions. It is in any event very sensible to try to agree with the other parties to attend (at least) one hour before. Depending on how busy their list is, judges are usually happy to give parties additional time to discuss matters, especially if this means that it is more likely that a consent order can be submitted for endorsement, but it is much better to start the discussion process sooner rather than later.
10.51Finding suitable rooms for discussions at court can often be difficult, especially as it will usually be the case that more than one will be needed so that instructions can be taken in private away from the negotiations. This is another good reason to be at court earlier rather than later, as this will maximise the chances of obtaining suitable numbers of conference rooms.
10.52Much the same approach as that set out above in relation to advocates’ meetings also applies in relation to productive discussions outside court. Two further points apply:
•More and more judges are in a position (and happy) to receive drafts of orders by email directly and/or it may be possible to persuade the court office to print off copies of the draft orders generated as a result of discussions. If it is possible for one of the parties’ representatives to bring a laptop with internet access, therefore, it may well be possible for a draft order to be produced during the course of discussions and for it then to be given to the judge in type-written form. If this is not possible, then the choice of representative to chair the discussions is likely to be dictated by the individual with the best handwriting;
•In many cases, especially those brought by public bodies concerning P’s health and welfare, it is a productive use of staff resources for the relevant professionals to attend (at least the first) directions hearing, ie the case management hearing for cases on the welfare pathway. This is for two reasons: 1) because it will allow instructions to be received rapidly from the professionals involved; and 2) because of the importance of the interim declarations and decisions that are likely to be made at that hearing ‘holding the ring’ pending the final determination by the court of the application. Further, where (as is often the case) the underlying issues involve those of trust as between family members and the relevant public authorities, having the opportunity for the professionals to meet with the family members outside court can provide a surprisingly productive forum for discussions: if nothing else, knowing that a judge will be scrutinising whatever agreements are reached or reaching (interim) decisions upon any areas of disagreement serves very usefully to focus the minds of those attending.
The hearing
10.53Whilst the hearing is likely to be relatively informal, especially before a district judge, the Case Management Pilot PD is prescriptive as regards the matters that will require consideration and resolution at both case management and final management hearings on the personal welfare pathway (see further paras 10.19–10.20) above, and parties should therefore be prepared to address the relevant matters set down in the PD for the particular hearing in question.
10.54It is unusual for evidence formally to be given in a directions hearing (as to the requirements in this regard, see para 12.13), but it is not uncommon for a judge to want to hear information directly from those with possession of it rather than through a legal representative. This is another reason why it makes sense in cases involving social services that the relevant social worker for the individual in question attends court.
After the hearing: the order
10.55It is now very common for the judge to ask the representative for one of the parties (usually either the applicant, if legally represented, or the party represented by the Official Solicitor if the Official Solicitor is acting as litigation friend) to submit an order to the court reflecting the directions made during the hearing. Some judges will in essence dictate the order down to the last detail, such that the task of drawing together the order for submission is relatively straightforward. Some judges will identify the broad thrust of their directions and leave it to the parties to agree the details to be put into an order for endorsement.
10.56It is clear that, if a party is charged with drawing up an order it is the duty of its solicitors and counsel to produce a draft that fairly reflects what they think the judge decided or directed.
7See, by analogy, Webb Resolutions Ltd v JT Ltd [2013] EWHC 509 (TCC), [2013] TCLR 6 at para 19 per Edwards-Stuart J. Experience has shown that the more that details are left to be discussed by the parties after the hearing, the more room there can be for difficulties, in particular if one or more of the parties starts (in essence) re-running matters discussed during the hearing or (even worse) raising entirely new matters. While it is not always practical to do so, especially if the hearing has run late in the day, it is always a good idea to try to agree as many of the points in the order as possible before parties leave the court building because face-to-face discussion is almost invariably more effective in resolving debates than emails sent on the next or subsequent days. It is also likely to be more efficient in the majority of cases where disputes arise
not to spend the subsequent days/weeks re-arguing the points between the parties, but rather to put two (or if necessary) more versions of the order to the judge by email so that the judge can decide. It is also suggested that unreasonable conduct in the post-hearing period is capable of attracting a costs sanction (ie it represents a basis under COPR r159 for departing from the normal costs rules set out in rules 156–157: see further, chapter 16 below).
8See, by analogy, Webb Resolutions at para 23.10.57One specific wrinkle arises in respect of cases in which the Official Solicitor is instructed to act as litigation friend for P. The Official Solicitor’s caseworker – ie the member of the Official Solicitor’s office with delegated responsibility for giving instructions on behalf of the Official Solicitor – often requires sight of an order for purposes of giving approval. This can sometimes give rise to difficulties where matters have taken an unanticipated turn at the hearing and the Official Solicitor’s caseworker (not having been present) takes the view that a different order to that set down by the judge should have been made. In such circumstances, and assuming that the provision in question reflects a direction made by the judge, the proper course of action is for the Official Solicitor to seek leave to appeal the direction, rather than re-open matters in post-hearing correspondence.