PD27A, FPR 2010: Trial Bundle documents and the Litigant in Person

A recent Judgment from the High Court has provided a robust reminder regarding the need to comply with Practice Direction 27A. The Judgment was published with the approval of the President and reminds practitioners of the need to ensure that a litigant in person is provided with timely disclosure of the required Practice Direction (PD) documents.

The case of Re B (Litigants in Person: Timely Service of Documents) [2016] EWHC 2365 (Fam) was concerned with child abduction. At what is described as “the door of the court” of the final hearing, counsel for the applicant provided their opponent, a non-English-speaking litigant in person with a 14 page position statement and 4 legal authorities amounting to 100 pages in length. All documents were written in English.

The case can be located here.

At a previous court hearing, directions had been given for the final hearing which included directions for the filing of statements and a Cafcass report. The final hearing was fixed with a direction that the parties attend and for interpreters to be provided by the court. No direction however was given for timely service of documents on the litigant in person.

In his judgment, Jackson J states that where one party is represented and the other not so represented, the court should normally direct as a matter of course

  • that the documents required under PD27A are served on the other party at least three days before the final hearing, especially where the litigant in person is not fluent in English;
  • the method of service, usually email, should be specified; and
  • where there is time, that the key documents are served with a translation.

Moreover, in cases where late service may cause genuine unfairness, the court should consider whether the hearing should be adjourned to enable the position to be corrected.

The reasons are obvious but are worth repeating. Ultimately, equality of arms consistent with article 6 rights to a fair trial should underpin all proceedings.  A right to a fair trial includes a right to know the case that has to be met. An imbalance is often present in cases where many litigants in person lack experience and are hesitant to raise a complaint about a matter such as late service of documentation. Additionally, late service of documents weakens the position of litigants in person as it removes any chance they may have to obtain explanation or advice before the hearing itself.

PD 27A can be found here. It is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements and additionally makes it clear (at paragraph 2.1) that these are subject to specific directions in any particular case.

Paragraph 6 states that the PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule goes on to state that it does not provide for service on the other parties, but the implication must be that the documents will be sent to them no later than that. However, the court in Re B makes it clear that the timings stated in paragraph 6 are “minimum service requirements” and that earlier preparation and service is necessary to prevent unfairness to litigants in person.

The Judgment is a timely reminder to practitioners to ensure that the court specifically deals with directions regarding PD27A to include method of service and possible translations well before the hearing itself.