The relationship between the Bar and the Bench

In January two years ago in Family Proceedings on the Move I 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 Family Court’ direction.

It is now established practice that the advocates in a case will be responsible for drafting the majority of court orders within tight time-scales, so relieving both the judge and the court service who otherwise would prepare and ‘type it up’. Only those of my era will appreciate fully what a sea-change in responsibility and time this produces. Advocates, who formerly strolled away from court for lunch – their job done – now spend hours in drafting and agreeing the order. Mostly, this work falls outside remunerated time. In other words, the preparation of orders is a pro bono contribution.

As of the 17 March 2014, should Advocacy Forms not be signed by judges on the day of hearing,  Newcastle Combined Court has stated that it will refuse to pass them to Judges for signature. Instead advocates will be required to make an appointment with the Judge (probably prior to court commencing) where the Judge will consider the matter and listen to the advocate’s representations as to why this wasn’t done at the conclusion of the case before leaving court.

The probability will be that the judge did not stay long enough at the conclusion of a case for the information required on the form to be added, and it to be handed in for signature on the day.

Yet it occurs to the blogger that this is yet another example of ‘the administration of advocates’ by the court.

The Advocacy Form was always a flawed concept, proving nothing that could not be better obtained from more reliable, existing sources – a set of instructions, an up-to-date index and a witness list provide all of the information that is needed. The ludicrous issue of a judge certifying start and finish times can, if needed, be spot checked by reference to the court file.

A senior member of the Bar has recently observed that where the court service lose court orders and bundles in a case they will now be required to ‘make an appointment with her and she will consider whether to provide them with another copy’. I agree with her; yet this brilliant and witty ripost shows just how far we as advocates are being pushed by ‘the system’ away from our old collaborative relationship with judges.

With the Quality Assurance Scheme for Advocates appointing judges as ‘graders of advocates’, the historic relationship between the Bar and the bench is now up-for-grabs. Judges and advocates are being manipulated and tied by the court service and government into a new web of bureaucracy. At what point will judicial discretion in relation to the drawing of court orders, the completion of Advocacy Forms, the grading of advocates – and most certainly many other issues – be totally removed, to be replaced by ‘management strategies’?