Practice Direction 27A – A gentle reminder…..

With increasing cuts in funding of cases and the increasing number of litigants in person on the rise before the family courts, practitioners and advocates have recently received a gentle reminder by Mr Peter Jackson in Re B (Litigants In Person: Timely Service of Documents) [2016] EWHC 2365 (Fam).

The reminder arises from a final hearing in a child abduction case in which legal documents, namely counsel’s 14 page position statement and four law reports amounting to some 100 pages, were given at the door of the court to a non-English-speaking litigant in person (LIP). If we are honest, most of us advocates at some point or the other have been in a similar position due to various work pressures.

Peter Jackson J reminds advocates of the obligations imposed by Practice Direction 27A concerning court bundles and in particular, paragraph 6. Paragraph 6 sets out the minimum service requirements and that they should be adapted in individual cases to protect the rights of LIPs in order to prevent unfairness to them that may arise from late service.

Where one party is represented and the other is a LIP, the court should normally direct as a matter of course that the Practice Direction documents under PD27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email, should also be specified. Where time permits, the court should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.

Isn’t it obvious that the right to a fair trial includes the right to know the case one has to answer? Court hearings are already difficult for LIPs, but many, being inexperienced, are hesitant to complain about matters such as late service, (that is, of course assuming that they are even aware that they can complain). In child abduction cases, the applicant is entitled to unconditional legal aid while the respondent is only entitled to means and merits-based legal aid. Therefore, frequently, the respondent often has no legal advice or representation and often cannot speak English.

The unfairness arising from this imbalance have been repeatedly stated. In K (A Child), Re [2010] EWCA Civ 1546, Thorpe LJ (at paragraph 34) and Munby LJ (at paragraph 46) said this respectively:

34. … If a foreign national, albeit an abductor, is obliged to present a case involving specialist issues of international family law before a court in this jurisdiction without any legal representation, and perhaps, as here, without any of our language, it is very hard to see that there is the necessary equality of arms and thus the Article 6 rights to a fair trial.

46. Any dispassionate observer sitting in this court might be forgiven for thinking that there is unfairness in that state of affairs and something very far from the equality of arms which is supposed, consistently with Article 6 of the European Convention, to underlie proceedings of this sort as indeed all proceedings. Justice, as was memorably observed so many years ago, must not merely be done but must be seen to be done. Although I am confident that, despite the mother’s forensic disabilities, justice has been done, I am much less confident that any dispassionate observer having watched these proceedings today would think that justice has been seen to be done, given the disparity in the resources which the State has made available to the one litigant and not to the other.

Holman J in PH v AH [2016] EWHC 1131 (Fam) at paragraph 12 made a similar statement.

Late service of documents weakens the position of LIPs by removing any opportunity they may have to obtain advice and explanation ahead of the hearing.

The Rules- Lets remind ourselves.

PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:
• The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing.

• Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing.
• The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing.
• The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that.

These are minimum service requirements that should be adapted in individual cases to protect the rights of LIPs. The need for earlier preparation and service places obligations on advocates and those who instruct them, to prevent unfairness to LIPs that may arise from late service.

Personally, I wholeheartedly appreciate what PD 27A is trying to achieve but there have been times when I have been in court and LIPs have produced what can only be described as a mountain of documents in the court room having refused to talk to me outside of court. Therefore, I think, practitioners, advocates and LIP’s all need to observe what is required for a fair hearing.