Categories
Procedure

Skeletons, Position Statements & Notes

There comes a point in life when you turn on the radio and think ‘this isn’t music; it’s just noise’. Or somebody says less pages instead of fewer and you inaudibly tut.

The law provides endless opportunities for this creeping pedantry, as you gradually turn into your own parent. My personal favourite is pointing out that there’s no such thing as a First Directions Appointment (FDA). And there isn’t. Look at the FPR 9.15: it’s called a “First Appointment”. There are no references in the rules to First Directions Appointments or FDAs. Eternal shame on Resolution for publishing a ”Guide to the First Directions Appointment”.

Does this matter? Well, there aren’t many cases which turn on whether you’ve mistakenly put the word ‘directions’ into a chronology. But then again, if we’re being honest with ourselves, every lawyer gets a small sense of satisfaction from being right, or from using the correct term. There are few careers more focused on deploying le mot juste. Where it can take years to live down the mistake of addressing a district judge as mum instead of ma‘am, where entire TOLATA claims go awry for confusing promissory estoppel with proprietary estoppel.

For this post, the pedantry du jour is what rules apply to written submissions and what should they be called? In financial remedy hearings these are described variously as Position Statement, Case Summary, Note, Skeleton Argument or Written Case. Invariably they all are all substantively the same: a gumbo of narrative background, legal citation, analysis of the issues (occasionally) with a soupçon of having a really good moan about the other side.

So what actually is the difference between a position statement and a case summary? This involves a detailed consideration of FPR Practice Direction 27A, (which I shall refer to, inaccurately, as the Bundles Direction.)

“Case Summary”

PD27A requires the court bundle to contain preliminary documents, including “…an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if possible, to four A4 pages” (§ 4.3(a)), but no longer (“unless the court has specifically directed”) than six pages (§ 5.2A.1).

An interesting comparison can be found at CPR PD 29A § 5.7 which provides that in civil proceedings, at a multi-track CMC, the case summary should not exceed 500 words.

Why, one wonders, do family litigants get up to six pages (roughly 2,250 words if 1 1/2 spaced) where civil litigants have to do it in about a quarter of the space? Are family cases inherently more complicated than civil claims? Or do family lawyers have less time to make their documents shorter? Maybe this is just another example of things happening differently and more loosely in family cases (see e.g. rules of evidence).?

So, a ‘case summary’ should explain the background to a case relevant to the specific hearing in no more than 4-6 pages.

“Position Statement”

Distinct from a case summary is a position statement which should include “a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing” (§ 4.3(c)). Again, unless the court has directed otherwise, this should be a maximum of three pages long (§ 5.2A.1).

However, the recent ‘FPR Good Practice Protocol’ (November 2019), which provides that in most cases questionnaires should be no longer than four pages (GPP § 13), states that (without derogating from the Bundles Direction) it is ‘good practice’ that a position statement including schedules should not cover more than 5 pages for a First Appointment, 10 pages for an FDR and 15 pages for a final hearing. Plainly this does not contemplate a 10 page position statement in addition to a case summary etc – it would appear that the framers of the GPP have a different interpretation of a ‘position statement’ than appears in the Bundles Direction;

“Skeleton Argument”

Unlike a case summary and a position statement, the rules do not require a skeleton argument. It should only be filed “if appropriate” (§ 4.3). A skeleton should be no longer than twenty pages (§5.2A(1)). However if the case is proceeding before a High Court judge, in which pursuant to Mostyn J’s ‘Statement on the Efficient Conduct...”, in which case there are specific provisions of para. 15 of that guidance which should be followed including that the page count should not exceed (respectively) 10, 15 and 20 pages for a First Appointment, FDR and final hearing without extensive quotation from the authorities;

By contrast, in civil procedure, the presumption of whether to file a skeleton argument is the other way around: skeleton arguments should be filed where the case is before a judge unless the hearing does not warrant one (see, e.g. Chancery Guide § 21.73), and will “almost invariably be essential” at a case management directions hearing (Chancery Guide § 17.20). Interestingly, this applies a broader interpretation to what constitutes a skeleton, i.e. “…a list of the persons involved in the facts of the case, a chronology and a list of issues will also be required… to be agreed where possible” (Chancery Guide § 21.75)

Skeletons for appeals in the family court (up to High Court level) are covered in FPR PD30A para 5.13 to 5.22 which contain the guidance that:

5.18 A skeleton argument must state, in respect of each authority cited –

(a) the proposition of law that the authority demonstrates; and

(b) the parts of the authority (identified by page or paragraph references) that support the proposition.

5.19 If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state the reason for taking that course.5.20 The statement referred to in paragraph 5.19 should not materially add to the length of the skeleton argument but should be sufficient to demonstrate, in the context of the argument –

(a) the relevance of the authority or authorities to that argument; and

(b) that the citation is necessary for a proper presentation of that argument.

The contents of a skeleton appeal prepared for an appeal to the Court of Appeal must comply with CPR PD 52A, Section V, and in particular the following:

(1) The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.

(2) A skeleton argument must–

– be concise;

– both define and confine the areas of controversy;

– be set out in numbered paragraphs;

– be cross-referenced to any relevant document in the bundle;

– be self-contained and not incorporate by reference material from previous skeleton arguments;

– not include extensive quotations from documents or authorities.

Schedule of assets

Curiously, the Bundles Direction contains no requirement to file the single most important document in any financial remedies case: a schedule of assets, or the second most important; a net effect calculation. There is a (generally overlooked) suggestion at FPR PD9A § 4.1 that the parties should “if possible” lodge an agreed schedule of assets, agreed summary and draft directions, before a First Appointment. But there is no equivalent provision before an FDR or final hearing. The Good Practice Protocol invites opposing advocates ‘wherever possible’ to work together to produce a “single (if possible agreed) assets schedule” (§ 14).

In practice it is extremely risky to attend an FDR or final hearing without a schedule (although this does still happen, even with seasoned representatives). There is similarly no guidance in the rules as to the format of a schedule: this has led to two broad schools of thought: the ‘Third Columnists‘ (Jt, H, W) vs ‘Second Columnists‘ (W, H, joint assets divided equally). For what it’s worth, I am a committed Third Columnist.

But, does anyone actually follow the Bundles Direction?

Strict compliance with the Bundles Direction § 4.3 would involve seven separate documents appearing at the front of the bundle for every hearing: (1) a case summary, (2) statement of issues, (3) position statement, (4) chronology, (5) skeleton (optional), (6) list of reading, (7) time estimate, which should comply with the strictures of § 10.1, ie

“(a) specify separately: (i) the time estimated to be required for judicial pre-reading; and (ii) the time required for hearing all evidence and submissions; and (iii) the time estimated to be required for preparing and delivering judgment”

This excludes the further three documents which the parties are encouraged to file before First Appointment (FPR PD9A §4.1) – making in theory a running total of ten.

However, §4.6 provides that “a final hearing, and shall so far as practicable in the case of any other hearing”, the first four documents may be consolidated into a single document – although this should be agreed, with any disagreements identified.

All of the above should be as “short and succinct as possible” (§4.4), cross referenced against the paginated bundle (§4.4) and where possible agreed in a single document with disagreements marked (§4.5)

In reality

In this age of micromanagement, where the Bundles Direction descends to the detail of prescribed font size and line spacing (§5.2), it’s noteworthy that no one actually follows the provisions of the Bundles Direction to the letter in money cases. It may be that in other areas (public law children for example) it makes more sense to have such a multiplicity of documents.

As noted above, what happens in financial remedies is that each party’s advocate lodges a single (and not agreed) document, comprising a mixture of factual background, sardonic asides, law and sometimes analysis (see earlier post, “The Ten Commandments of Financial Remedy Notes”).

And the Bundles Direction doesn’t really cater for this, in terms of how long such a composite document should be, or even what it should be called. The Good Practice Protocol comes closer to recognising reality in its provisions relating to Position Statements (see above).

So I will offer my own, unauthortative thoughts:

1. When filing a composite document it is probably better to avoid terms such as Case Summary or Skeleton, which have defined meanings in the Bundles Direction;

2. The term “Note” is probably fine (if a little undersold), as is “Position Statement” (even though that has its own precise meaning in the Bundles Direction, cf. Good Practice Protocol). For those with grander aspirations, the term “Written Case” (which is used when filing documents at the Supreme Court) also works

3. The page limits in the amendments to the Bundles Direction are if anything conterproductive: § 5.2A.1 allows a total of 42 pages for the preliminary documents (excluding the time limit/ trial timetable). That is like setting the speed limit at 180 mph on the motorway.

4. In terms of length, and I cannot emphasise this too strongly, shorter is better. Judges do not have the time to read through a 30 page magnum opus in a busy list. The almost universal experience which comes from sitting as a judge or arbitrator is err on the side of brevity – see the FLJ Guide to the FDR § 19

5. Always lodge a schedule of assets and (at FDR or final hearing) a net effect schedule.

6. When you have the time, lodge draft directions / a draft order.

7. Finally, with the current Covid crisis in mind, do not overlook the following provisions contained in the Good Practice Protocol: where documents are lodged by email the time limit is 2pm the day before (GPP § 14, cf. 11am in the Bundles Direction), and the Financial Remedies Court (even pre-covid) encouraged submission by email so that the hearing can be paperless.

Alexander Chandler

2 July 2020

Categories
Procedure

The Road Ahead (Shortened)

President’s Guidance on Covid and the Family Court

The Guardian used to have a feature in its Saturday magazine: the Digested Read. This would involve John Crace summarising a book in about 700 words, and then (in “the Digested Digested Read”) condensing that summary into one or two words, like the final round of the hat game. “The Mandibles”, Lionel Shriver’s 800 page futuristic novel about the USA: Digested Digested Read = “The Unreadables”.

This blog is a Digested Read of “The Road Ahead: The Family Court and Covid 19”, a route map from the President of the Family Division, Sir Andrew McFarlane P, setting out how the family court will operate in the next six months or so. (Answers on a postcard as to what font McFarlane P is using: I’ve never seen it before)

“The Road Ahead” follows compendious guidance from:

In “The Road Ahead”, McFarlane P acknowledges that we are, in effect, all directed out:

“§16 The overwhelming view of the judiciary and legal profession is that the Family Court does not need any further directive or proscriptive guidance on case management at this time… I agree with this overwhelming view” 

So, in the absence of further directive or prospective guidance (with one exception: see § 17 of The Road Ahead re: joint letter to the judiciary) , what are the takeaway points from The Road Ahead?

  1. In terms of social distancing restrictions etc it is clear that we are all in for the long haul: “…likely to remain for many months to come” (§ 1)… “…it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021” (§ 5, emphasis added);
  2. This elongation of the timescale for a return to normality must now be reflected in case management decisions. The need to achieve finality in family cases, and the detrimental effect of delay “…must form important elements in judicial decision making alongside the need for fairness to all parties” (§ 6). In other words, the courts should be less willing to adjourn cases since an adjournment will likely involve inordinate delay;
  3. The backlog of cases, already significant before March 2020, means that the court must face a new “reality” that “for a sustained period” a high volume of cases must be determined in a fair, just and timely way “in sub-optimal court settings” (§ 9);
  4. This is particularly acute in children cases where “…the need to avoid delay will always be a most important factor and may be determinative in many cases” (§ 12);
  5. The family court will be moving from working remotely to hybrid hearings (where some participants attend court and the others engage remotely) and, increasingly, attended hearings;
  6. The court buildings are due to reopen over June and July, on a reduced capacity basis (i.e. following risk assessments, only a limited number of courtrooms will be considered appropriate for attended, social distanced hearings, with a limit on the number of attendees in each courtroom etc) (§§ 19,20);
  7. The call on these courtrooms will be significant (from across the board) and enquiries may be made about the availability of space outside the court estate such as conference rooms (§ 21);
  8. In terms of video conferencing, Cloud Video (CVP) is favoured by HMCTS and is being prepared for widespread use across the jurisdictions. Microsoft Teams is available for use by many judges; Zoom is not. (§ 23)
  9. The following “very firm steer” is provided:

a. In terms of remoteness, a remote hearing over the telephone is the most remote option other than a paper or an email based process.
b. Telephone hearings may be well suited to short case management or review hearings, they are unlikely to be suitable for any hearings where evidence is to be given or where the hearing is otherwise of substance.
c. Where a suitable video platform is an available and viable option, video, rather than telephone, should be used for the conduct of a remote hearing.
d. It is not a good use of a judge’s time for the judge to be responsible for dialling in each participant for a BT Meet Me hearing. HMCTS has accepted that the task ought to be undertaken by staff and they are working hard to achieve this in all courts.
e. Experience has shown that BT Meet Me Dolby Plug-In (which channels the phone call through the judicial computer) is preferable to the basic BT Meet Me service and it should be used where available when a hearing is to take place over the telephone.
f. The two video platforms currently supported by HMCTS are Skype and CVP; of these two CVP is more effective than Skype and should be used where it is available

10. Perhaps the most significant part of ‘The Road Ahead’ relates to case management

§ 43 If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear. 

11. Between §§44 and 46, McFarlane P notes:

§ 44 Clear, focussed and very robust management of cases will be vital in the coming months. The case management judge will have the difficult role of balancing the welfare of the child, the need for a fair and just process and the limited resources of space, time and format with the need to conclude the proceedings. 

§ 45. Adjourning the case to await a full face-to-face hearing is unlikely to be an option. The court must identify those issues and applications that need to be heard and then move on to determine them. 

§ 46. Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court. 

§ 48 In keeping with the overriding objective and the elements highlighted in paragraph 47, judges should (after canvassing the point with the parties) consider whether giving a short judgment will be sufficient and proportionate in any particular case. In a short judgment the court will not be expected to set out a detailed recital of the evidence, save for those key elements which support the court’s findings and decision. There should not, however, be any reduction in the content and scope of the judge’s description of their analysis and reasoning. 

12. With the objective of encouraging stricter case management, the court sets out a lengthy ‘COVID Case Management Checklist’, (A) narrowing the issues, (B) regarding the Hearing Format and (C) optimising the fairness of remote hearings. All of which should be read in detail in advance of a directions hearing.

The digested, digested read? “Carry on regardless”

Alexander Chandler, 9 June 2020