Just as a gas will fill the space it is able to occupy, it seems there is a tendency for legal documents to expand as well if not otherwise kept in check. With this concern in mind and a wish to rein in bad practices that the President of the Family Division recently issued two memoranda for practitioners, one concerning witness statements, the other about the drafting of court orders. They are helpful reminders about the proper purpose and content of each and a reminder to keep firmly in mind the “overriding objective” of dealing with matters justly, expeditiously and proportionately when preparing such documents. No formal Practice Directions were considered necessary yet, but the memoranda do send a shot across the bows that these will follow if the principles are not observed.
The main gripe expressed in the first memorandum was the growing trend to use recitals to summarise what has happened at the hearing and incorporate non-essential information, often with an angle to steal a march for the client by formally recording something that party considers may be of use to have recorded for future hearings. The President is keen to change this practice.
Whilst orders in children proceedings require a level of detail to ensure all essential information about the case is recorded, this should be done concisely and as neutrally as possible and financial orders have no such requirement. Parties must not seek to record in the order views of the court that did not form part of the decision, nor to record either party’s position in relation to any hearing.
There may be concern about the reminder to have orders submitted and the subsequent hearing date fixed and recorded before the parties leave court and how realistic that is in practice.
In the second memorandum, the President reminds us of the fundamental purpose of such documents, namely to tell the parties and the court what evidence they intend to rely on. They should only contain evidence from the person giving the witness statement and the aim is to assist, not detract from, the overriding objective to deal with cases justly and proportionately. They should only address matters of fact (which should be relevant and from personal knowledge) or matters of information and belief (with details of the source provided). They must not try to argue the case, quote repetitiously at length from other documents within the proceedings, express opinions or use rhetoric.
That memories are fallible, capable of influence and susceptible to suggestion is also noted by the President. This is important to recognise, not only to avoid categorical statements being made about past events that are in fact likely to be a little hazy given the effluxion of time (unless supported by contemporaneous documentation), but also to ensure no alteration or influence is applied to a witness when recalling past events, such influence amounting to serious professional misconduct.
Should a statement fail to adhere to the relevant principles, including the page limits, the court has the power to render the evidence inadmissible.
Practitioners will need to bear in mind that if they ignore the message Judges may no longer be as forgiving as they have been in the past. One area where Judges may need to be forgiving – and realistic – is in recognising that the aspiration to fix a next hearing date immediately is often impossible to fulfil. There is much good sense in what the President has said and, to return to the original metaphor, the hope is that it does not just become ‘hot air’.
The president of the Family Division has issued a public warning to practitioners over the preparation of witness statements and drafting orders.