The Headmaster’s slipper

headmaster2

In a previous posting Family Proceedings on the Move we caught sight of Judge Stephen Alderson’s pincer move concerning the drafting of court orders by advocates.

With the imminence of the Single Family Court, and the critical time limits by which it will be judged, a further new direction has been given concerning the filing of orders. I have set it out in full below, with some highlighting.

When many years ago, this blogger came to practice at the Bar, the judges drew their own orders – for that was a part of their job  – for which they were paid.

Now, it seems, it is a task for the advocates – for which in publicly funded cases, they are not paid. No doubt the President would deem it to be part of the not-inconsiderable ‘pro bono’ work of the 21st Century Bar.

What is even more questionable is the way in which the burden shifts deftly from the Applicant  ‘litigant in person’  – to the privately paying Respondent.

So, not only does a represented party bear a responsibility to prepare the case summary, court documentation and bundles, but now to spend further time after the case has been completed in drafting the orders. Those who responsibly seek representation, end up paying the whole cost of case management.

Of course, counsel and solicitors can and do prepare perfectly agreeable orders when needed, but there are cases where a draft order limps back and forth before a reluctant agreement is reached. That is because the advocates have to unravel from the judgment what the judge really intended – and sometimes this can be a mind-boggling affair.

When we listen to a judgment, we take from it a differing emphasis or ‘spin’ , and this may find its way into the order that we draft. Other times, the judge may fail to cover a point that could have been picked up by the judge had she or he drawn up the order. In such cases it is left to the battle lines of counsel and solicitors who may have very different views from the judge.

But for now, it is to be our job. Do it to pleasure the judges. Fail – and it appears that you will be punished on costs. And you don’t want that!

Submission of draft orders for approval in the Single Family Court

This direction applies to the High Court and all of the County Courts sitting in the area of the jurisdiction of the Northumbria Cluster and North Durham Courts.

It has become apparent that on a number of occasions Counsel, advocate Solicitors and/or instructing Solicitors have been responsible for delay in submitting draft orders for approval by the Judge when required to do so and this has caused disruption to the management of cases in a proper time frame. A considerable amount of Court time is being spent pursuing Orders causing delay in producing sealed Orders for the parties.

While it is accepted that in a few individual cases that the Judge and the Advocates may make separate arrangements, at the Advocates request, this direction sets out the expectations of the Judges to apply automatically in all Family cases.

  1. In all cases the responsibility to draft orders and submit them to the Court lies initially with the Advocate/instructing Solicitor for the Applicant however if the Applicant is not represented, then the responsibility falls to the Advocate/instructing Solicitor for the First and then the subsequent Respondents in order unless all of the parties are unrepresented.
  2. In all hearings before a High Court Judge, a Circuit Judge, Recorder or District Judge the Advocate/instructing Solicitor shall submit a draft order for approval within 48 hours.
  3. In the case of final hearings of applications for a Financial Remedy under Part 9 of the FPR 2010 the Advocate/instructing Solicitor shall draft and submit the Order for approval by 4:00 pm on the seventh working day after the close of the hearing.
  4. All draft orders following a hearing shall be submitted by e-mail in Word format (not PDF) to the relevant Court as listed below or by agreement to the individual Judge directly.
  5. If an Advocate/instructing Solicitor has not submitted a draft order as above or as individually agreed then the matter will be referred to the Judge and if necessary listed for a mention before the Judge for an explanation of the delay and the costs of that hearing will be at large.
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4 comments on “The Headmaster’s slipper

  1. Liz says:

    I noticed this last dictat had no author. I did wonder what jurisdiction existed to compell us to do any of it….

  2. Faulks says:

    Is this an enforceable local practice direction? There are a number of commentators that have suggested that the FPR 2010 does not allow for a local practice direction. The case of The Secretary of State for Communities and Local Government v Bovale Limited & Herefordshire District Council [2009] EWCA Civ 171 refers (at paragraphs 27 & 28) to the 2005 Constitutional Reform Act, section 5. Does Newcastle enjoy the approval of the LCJ and the Lord Chancellor? And where does one find such local practice directions? Are they on t’inter-web?

    Glad to be with the smoggies on this one, but I imagine that it will only be a matter of time before we are going to be approached to draft orders where an overwrought DJ has had 2 litigants in person before them. Just what happened to the quid pro quo for taking the Queen’s shilling? Surely it should be a case of taking your salary, taking your pension and taking on your responsibility?

  3. […] raised an issue about the requirement for advocates to draft court orders.  In July last year in The Headmaster’s Slipper, I had cause to revisit the topic in the light of the ‘Submission of Orders in the Single […]

  4. Rob Gilbert says:

    A threat was made,not personally by a DJ now retried who said failure to complete orders would lead to admonishment from the bench.I said that the admonishing judge would have to have authority to hand to justify the position,which I doubted existed.TheDJ asked an experienced solicitor (President of local Law Society) ,also in the case to stay behind,where that solicitor was told by him (i.e. DJ) I was almost certainly right.

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