Why are we still filing documents at court?

I was once contacted by a potential new client who had represented herself at a divorce financial hearing and it had gone badly wrong. The court had directed that she and her husband should file Form E financial statements containing a summary of their respective financial circumstances, along with documentary evidence.

The wife had followed the court’s direction insofar that she had filed the statement and evidence at court. However, she omitted to follow the court’s directions properly; the court had issued standard directions at the outset of the application that the Form E statement was to be filed at court AND served on her husband.

As a result, when the hearing took place, the husband’s solicitors complained that they had not seen the statement and that therefore the hearing could not go ahead, even though the judge had a copy sitting in front of him or her in court that day. The judge agreed and as this was due to the failure by the wife to follow the court’s directions, she was ordered to pay the husband’s legal costs, which I expect could have been a few thousand pounds.

I often find that people who represent themselves do not understand that filing a document at court is not enough. The court will not usually send a copy to the other side who may well be oblivious to its existence. In this case, I would expect the husband’s solicitors to have repeatedly written or emailed the wife asking for a copy of her statement, so the wife may have been asking for trouble when she failed to send them one.

It is absolutely essential that where documents are filed at court, both sides must see the document. Some litigants in person can be very uncooperative and do the bare minimum necessary to comply with the court’s directions, and just send a copy to the court. Frustratingly, they often also don’t even keep a copy for their own use. There is a lack of any real understanding about how the court operates. The reality is that the court is overburdened with the amount of work that it has to deal with.

In fact, it is arguably a waste of time to send a copy of the order to the court even though the court does direct that one must be filed. This is because the court is not actually going to do anything with the statement other than put it in the court file. Where a court order or the Family Procedure Rules require that a statement is filed (or “lodged”) with the court, this is in fact something of a throwback to the position that existed when I first started practising as a solicitor in the 1990’s. In those days, if you went to court, you would frequently find the judge looking at the court file and the documents that had been filed at court. However, in reality it was probably the first time the judge had looked at the court file.

This wasn’t a very efficient way of dealing with things and eventually the court adopted rules that a bundle had to be provided containing all the relevant documents for hearings that lasted for more than one hour which only applied to a small number of family hearings. However, eight or nine years ago the Family Procedure Rules were amended to introduce Practice Direction 27A. This change in the rules obliged the solicitors for the applicant to prepare a court bundle for all hearings, regardless of whether the hearing was expected to last for five minutes or five months. The court bundle contains all relevant documents in the case including copies of applications, orders, witness statements, and expert reports etc. If the applicant is unrepresented, the respondent’s solicitor has to do it.

It is therefore arguably completely pointless now to file statements at court. This is because the court does not engage in constant case handling. Very little happens in a case between hearings at the court; it is the responsibility of the parties or their solicitors to progress the matter and to comply with the court’s directions. The judge very rarely picks up the court file and looks at it other than when a hearing takes place.

As the first time that the judge will look at the case comes shortly before the hearing, the document that he or she will look at will be the court bundle lodged just beforehand and not the documents that have been filed at court weeks or months before. It is completely pointless therefore to file documents with the court. Furthermore, when I am presented with a draft order for my approval, which provides for a document to be filed at court, I frequently score out that provision because it is a waste of time.

However, there is one area where it is essential that documents are actually filed at court and that is where both parties are not legally represented. Where both parties are not legally represented and do not have a solicitor who can prepare the bundle for the court, the court usually does not order unrepresented parties to prepare a bundle. Obviously, if there is no solicitor involved to ensure that all the relevant documents are put before the court, then it is important that the statements have been filed at court so that the court can have access to them. Given that a huge number of family cases, especially those in relation to disputes about children, take place without either party being legally represented, it still just about makes sense for the rules to provide for statements to be filed at court.

The solution to this is of course a technological one. It should be possible to file documents at court electronically so that they all appear on the court file and can be accessed without difficulty. The Family Court is only now really starting to embrace electronic case management for the first time, something that was happening on an extremely patchy basis until a few months ago when the COVID-19 pandemic forced the court service to try and embrace paperless working and accept documents filed by email. However, even then, there have been all sorts of difficulties in doing things because the court struggles to cope with large documents sent by email, and in my experience, it sometimes struggles to cope with file sharing services such as Dropbox or WeTransfer.

It really is astonishing that the court service is so far behind the rest of society in embracing modern IT, but it is slowly becoming much more digital in its approach. However, there are inevitable glitches. The government’s track record for IT projects is pretty poor throughout the public sector and HM Courts & Tribunals Service (HMCTS) is no exception to this rule.

Last week HMCTS had to tell solicitors that they should stop using the new solicitors online divorce portal because of a glitch that was causing multiple court fee payments of £550 to be taken as a result of solicitors having to click multiple times to get the portal to actually issue a divorce petition. None of this bodes well for their next big IT project, introducing their new Cloud Video Platform, which HMCTS has designed, rather than just simply using Zoom. Luckily for family lawyers, the CVP has been pioneered in the criminal courts so hopefully they will have ironed out all the bugs before family lawyers have to use it.

2 August 2020

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