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15.9As discussed in detail in chapter 10 above, and has been given renewed emphasis by the Case Management Pilot, one of the key case management tasks of the court is to ensure that the issues in the case are identified at an early stage, in large part so that directions can be made to ensure that the evidence (but only the evidence) necessary to resolve those issues will be before the court. It is worth emphasising, however, that the issues can – and frequently do – evolve during the currency of proceedings. For instance, if P is elderly, their health may deteriorate and different priorities may assert themselves when it comes to their best interests. A case brought before the court on an urgent basis arising out of a safeguarding concern may evolve dramatically if further investigation reveals that the concern is in part not borne out. If a separate fact-finding hearing has been listed (see chapter 14 above), the court may in giving its judgment upon the matters considered at that hearing make findings which require one or other party to take stock of how it wishes to present its case at the subsequent hearing to determine the substantive best interests questions. Alternatively, expert evidence may be directed following such a fact-finding hearing which puts a different complexion upon the best interests exercise. It can also be the case that trial periods of contact (for instance) directed at an interim hearing have proceeded sufficiently successfully that a local authority applicant decides that it can adopt a more ‘relaxed’ position at the final hearing.
15.10By the same token, it can also frequently be necessary for provision to be made for the filing of updating evidence relating to P’s circumstances: the court will be determining what is in P’s best interests as at the time of the final hearing, so it is necessary that it is provided with the most up-to-date evidence possible. While witnesses can amplify their written evidence in the witness box (see further para 15.28 below), it is desirable to ensure that that written evidence is as current as possible.
15.11So as to ensure that final hearings are successful in terms of leading to a determination of the issues on the basis of the necessary evidence, the Case Management Pilot has introduced a final management hearing for cases on the welfare pathway (see further paras 10.19). Even though there is no formal requirement for a final management hearing for cases on the property and affairs pathway, it is likely that an equivalent hearing would be listed in the event that the case was of any complexity.
15.12A final management hearing will follow the pattern of directions hearings discussed in chapter 10, but with a particular focus on ensuring that both the issues and the evidence have been finalised insofar as possible in advance of the final hearing. To that end, the Case Management Pilot Practice Direction (PD) provides that a meeting should take place five days before the final management hearing between advocates, and, insofar as practicable, any unrepresented parties, with the purpose of resolving and narrowing the issues to be determined at the hearing, addressing each of the matters required by Pilot PD 4B/PD 13B (see further paras 10.20 onwards) and, critically, preparing a draft order.
1Case Management Pilot PD para 4.6(2). The applicant or (if the applicant is not represented but the respondent is) must also file a core bundle complying with the provisions of Pilot PD 4B/PD 13B including, in particular, those provisions set out at paras 10.37).
2Case Management Pilot PD para 4.6(2) and Pilot PD 4B/PD 13B paras 4.2 and 4.3.15.13The judge at the final management hearing will want to see, in particular:
•an agreed time estimate for the final hearing made on the basis of separate provision being made for 1) judicial pre-reading; 2) hearing all the evidence and submissions; and 3) preparation and delivery of judgment.
3Pilot PD 4B/PD 13B para 10.1. Experience suggests that estimates given by legal representatives often underestimate the time for 2) and almost invariably do not give sufficient time for either 1) or 3);
•a draft witness template identifying precisely who will be giving evidence when and specific arrangements that may be required in relation to any particular witness (see further paras 15.45 onwards for particular considerations that may apply in relation to vulnerable witnesses or where a person is giving evidence by video-link). It is important to be realistic as to how quickly it is possible to hear from each witness, and also to schedule witnesses appropriately, especially where (for instance) clinicians will need to re-arrange clinics in order to attend; and
•specific consideration as to any practical issues that may arise in relation to hearing from P. See further below, paras 15.34 onwards.
15.14The preparation of bundles for directions hearings is discussed in detail at paras 10.32ff above. The same practical requirements set out in Pilot PD 4B/PD 13B will apply to almost all final hearings as they do to interim hearings (including as to the timing for lodging them), and they are not repeated here. There are, though, specific requirements that apply to the preliminary documents that must appear in the bundle, addressed in the paragraphs which follow.
15.15At the start of the bundle there must be inserted a document or documents prepared by each party (‘the preliminary documents for a final hearing’) which should set out (either within the preliminary documents themselves, or by cross-reference to what is set out in another document that is in, or is to be put in the bundle):
•the relief sought;
•a skeleton argument.
4Pilot PD 4B/PD 13B para 4.6. 15.16Where appropriate, the preliminary documents for a final hearing should include
•a chronology;
•the findings of fact that the court is being invited to make and the factors based on such findings or agreed facts that the court is being invited to take into account;
•an appropriately particularised description of the alternatives the court is being invited to consider; and
•a description of relevant family members and other persons who may be affected by or interested in the relief sought.
5Pilot PD 4B/PD 13B para 4.7. 15.17Each of the preliminary documents must state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared.
6Pilot PD 4B/PD 13B para 4.8. All case summaries, chronologies and skeleton arguments contained in the preliminary documents must be cross-referenced to the relevant pages of the bundle.
7Pilot PD 4B/PD 13B para 4.9.15.18Where the nature of the hearing is such that a complete bundle of all documents is unnecessary – for instance, because the relief now being sought by the applicant has been refined significantly – the bundle (which need not be repaginated) may comprise only those documents necessary for the hearing, but i) the preliminary documents must state that the bundle is limited or incomplete; and ii) the bundle must if reasonably practicable be in a form agreed by all parties.
8Pilot PD 4B/PD 13B para 4.10.15.19One injunction which is regularly honoured more in the breach, but which is actually of some importance, is that, where a bundle has been taken away after a directions hearing and is then re-lodged, the bundle must be updated and superseded documents must be
removed.
9Pilot PD 4B/PD 13B para 4.11. Judges – understandably – become very impatient with bundles that contain numerous iterations of documents: it is very rarely necessary for any but (for instance) the most recent version of the care plan for P to be contained in the bundle.
15.20For the final hearing (as opposed to the final management hearing), a further requirement is imposed in relation to the court bundle for welfare cases falling within the Case Management Pilot: the bundle should not normally be more than 350 pages, and should in any event not contain more than one copy of any document.
10Case Management Pilot PD para 4.7(2)(b).15.21Where witnesses are to give evidence at the final hearing, it is important that a separate bundle is provided which can be put into the witness box for them to use during the course of the hearing. It is equally important (but sadly not always the case) that this bundle matches the pagination of the bundles being used by the parties and the judge to avoid unnecessary delays during the hearing.