Posted on | December 16, 2012 | 9 Comments
“Local Practice” used to be a term issued with a sneer by London counsel, lording it about how parochial sticks-based courts were (in truth I may be guilty of muttering it under my breath myself occasionally when I appear in an unfamiliar court that appears to have had an article 6 bypass).
However, Local Practice is positively de rigeur these days. In my neck of the woods we are struggling to maintain our composure in the face of three distinctly distinct local approaches. My head is spinning with guidance and protocols and emailed admonitions, pleas and explanations of new rules.
In Bristol, where (as one newcomer recently observed) “They don’t really do IRH’s do they?”, practitioners have received an emailed “Exhortation” from the DFJ. At least it is in the form of a request for cooperation rather than a demand or a pre-emptive criticism. And it is admirable in its 2 page brevity. This and other requests for help and joint working in Bristol cases have resulted in courteous exchanges of emails between HMCTS and local practitioners, resulting in finessing of the guidance to make it more workable for all. Collaboration gotta be good. Bristol’s “Exhortation” is a sort of judicial poetry, the “Not Waving but Drowning” of local PDs. It made us feel wanted and I think in Bristol practitioners work together to try our best to achieve good and just outcomes whilst minimising delay. Less good was the communication about secure email, which I blogged about before and which has still not resulted in any workable system and has been largely ignored because its impracticalities have neither been thought through nor addressed by HMCTS, and the necessary changes have not been made by most practitioners. Its stuck in a chicken and egg feedback loop (or something). Although I’m a fan of the comparatively flexible Bristol approach to case management, it has to be acknowledged that average care case duration in Bristol has not been great (although there are no doubt many drivers of those stats including the fact that historically Bristol has suffered particular CAFCASS difficulties).
Moving along the M4 to Swindon: Here we have a local PD with LOCAL standard forms (not the same as the ones they like to use elsewhere so you have to have them all on your computer at the ready). We’ve had it for a while, and it’s all fine as long as you remember to switch hats and mindsets somewhere around the Chippenham exit of the M4. Average case duration in Swindon is pretty dire, but the PD arises from the tenure of a new DFJ in January, and the new, more proactive approach signalled by the issue of the Local PD has perhaps contributed to a rash of appeals from that court (some successful others not).
We also have supplementary guidance from Swindon asking for initials and case numbers only in email subject lines. I think this must be right, but it contrasts with guidance received in June from a Bristol judge that we should email material in the following format: “Subject: 3:30pm 13.06.12 Smith v Jones (and Judge’s name if you know it)” (subsequently countermanded by the edict in September that the court in Bristol would accept nothing that did not arrive by secure email, referred to above). I’ve given up worrying about what this week’s guidance is and adopt a common-sense-information-commissioner-aware approach : I use initials and case numbers and I try not to send stuff to hotmail accounts (but there are a surprising number of advocates who insist on using hotmail and advocates are expected to circulate to other advocates and e-file – so secure email is a nonsense for the time being).
The Swindon PD wins the prize for length, coming in at 45 pages (although that incorporates tailor made templates for case summaries and orders). In Swindon the approach on threshold is as follows: “…it is not anticipated that this document should need to be revised or a “final” version filed before final hearing unless there is a particular need to do so. No schedule should be filed described as an “interim” document.” Wiltshire evidently adopts the approach set out in pa 47 of the Family Modernisation Programme Final Report, namely that the distinction between interim and final threshold is one without a difference. One might argue (and I have heard far more eminent people than myself argue) that this slightly ignores the difference in law between s38 and s31, but hey. It’s only statute. And I’m a pedant.
Back along the M4, and over the bridge… In recent weeks the Cardiff Practice Note arrived. Cue much incredulity, weariness, huffing and triumphant spotting of typos. Contrary to Practice Direction 22A it contains no page numbers, but I can report that it numbers 15 closely typed pages of unnumbered paragraphs. In what is presumably an homage to the Self Represented Litigant it includes a full half page of close typed BOLD UNDERLINED CAPS LOCK ON “INVERTED COMMAS” LADEN TEXT. So I guess it must be serious (its about EXPERTS). On the plus side, none of it is in GREEN or ITALICS.
Of thresholds, the emphasis (and tone) is distinctly different from that in Swindon. It is said, “The document is focussed on the factual disputes and does not need to be completed in legal language. It is not a pleading [Er...Isn't it? What about Re J-L (although no judgment is yet available so I'm dependent on the case summary)]. There is a tendency for threshold documents and schedules of findings and the replies to these documents to be complex unfocussed and to obfuscate. It is the experience of the court that such documents can be a thinly veiled attempt to hide the weaknesses on threshold or the weakness of the case of a parent [Er...or alternatively they are a parties best attempt to articulate the strengths of their case or the weakness of their opponents?]. The question which the court will want answered is “what is the factual evidence which establishes or negates the particular concern”?
What really itches my wig though, is the remark on page 7 that “If the court considers that the hearing cannot be effective because of an uneccessary professional default, attendance costs may not be certified for that advocate and the hearing adjourned”. Where the failure to have an effective advocates meeting is due solely to the professional default of a legal representative or the local authority the court will consider the issue of wasted costs and other sanctions.”
The underlying assumption in this paragraph is that entitlement to payment for services rendered is within the gift of the court – and that payment may be properly withheld by the court if it is displeased with the conduct of an advocate – including it appears conduct falling short of that which might merit a wasted costs order. I hope I do not need to spell out why this is so hideously objectionable (it is part of one’s job to fearlessly defend the client even if the judge is looking distinctly tight lipped about our efforts so to do), but I will state the obvious fact that of course such a power (if it actually existed as suggested) appears only to apply to the publicly funded advocate (i.e. the advocate who has agreed to do the work for a significantly depressed rate of pay in the first place). It seems to me that an advocate whose professionalism is lacking could not properly complain if the court referred the matter to the BSB or gave notice to show cause on wasted costs – but this? This is oppressive and demoralising. If you don’t achieve the impossible you won’t get paid? REALLY? Some rather more forthright advocates than myself might say* “Well Fudge to THAT. I’m orf.”
There remains a lot of local practice. Jokes about the Children Act (Wales) 1989 are commonplace because procedural expectations are so very different at different ends of the bridge. In South Wales for example there is a standard direction that all parties are mandated to inform the court of any non compliance of a direction by any party (recently adopted in slightly softer terms in Bristol). In South Wales police and medical disclosure seems to be far more routinely and frequently ordered at the outset of proceedings than in most other court areas I visit (no doubt bundle uplifts are used up very quickly in Wales). In Worcester there is a “three month rule” in relation to the instruction of experts. Whilst in many areas there are now standard directions requiring advocates to attend 45 mins or an hour prior to a hearing, in some** exception is taken to such a course of action, presumably because it is expected that advocates should be ready to rock and roll at the listed time because the case is all ship shape and Bristol fashion (ha!) on arrival at court. Some*** will expect a C2 to be issued for every teeny communication with the court where common sense suggests a letter would be more proportionate, others will deem everything and anything to have been issued. This is the sort of stuff that makes the Red Book a waste of money. And I’m sure there are many many other examples from further afield than my area of practice, lying in wait to trip up an advocate appearing in unfamiliar territory. Not to mention the differences in judicial approach within even one court building.
Much of what is said in these Local PDs is common or accepted best practice, and is a rehash of the PLO; although I confess to not having extensively cross referenced each of these documents, in order to ensure that any inconsistency or point of detail betwixt the PLO and Local PDs, or between various Localities, is identified. I’ve only highlighted a few of the discrepant views about what amounts to “best practice” – there are plenty more hidden in Local PDs and that are floating in the ether, ghostly edicts without identifiable documentary underpinning (such as the time a Legal Advisor insisted that the bench could not make a decision on transfer pursuant to the regs which give them that power, without the express approval of the DFJ by telephone first).
My point is not that there could or should be across the board consistency – it’s more about the counterproductive potential of too much guidance, and the deleterious effect it can have on morale and focus. It is actually quite impossible for advocates to be up to speed with all local PDs from all courts they visit when they are circulated on a one off basis to local advocates only – I’m still trying to get my paws on the Newport PLO forms. When one appears in a new court there is no easy way of knowing if there is some crucial piece of local guidance.
I don’t mean we shouldn’t try either to give guidance or to follow it – this is not a counsel of failure. But ultimately one can construct and define “Standard pathways” based on “standard cases” as much as one likes : I’ve yet to see the standard case that fits neatly into the PLO, or a standard child with a standard timescale (or even any individualised use of the concept of timescales to add meaning to the decisions we make about unique children).
Every case is different, and I dare say every area is different. I understand the perils of blanketisation****, and the urge for each DFJ to try their own approach. I don’t want to be standardised to within an inch of my life and frankly I’m grateful for being based in Bristol rather than elsewhere. BUT… the proliferation of guidance documents and practice directions is just one more layer of increasingly unbearable pressure on legal representatives. I guess it’s easy for me to complain from the ranks, far harder to be the plate spinning DFJ watched hawkishly by HMCTS and others, constantly reminded of their average case duration, the 26 week mantra throbbing in the background all the time. But the public law wing of the family justice system does still depend on the legal representatives to keep it afloat – and I wonder whether this guidance is actually achieving its objective of helping us do our jobs better. And it’s getting more like drowning than waving at our end of the pool too.
Can’t wait for Ryder J’s expectations documents…Then we’ll really know where we stand : except I’m our feet won’t reach the sea bed and there will be no dry land in sight.
* Not me obviously. Hypothetical protagonist.
** Oh alright, its Wales again but I didn’t want to look like I was being nasty about Wales.
*** Yep. Wales again. Sorry Wales.
**** Yes I just made that up. Copyright Lucy Reed 2012.