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Accessible legal tips, know-how and news for anyone with a complaint or legal issue from Stephen Gold, author of The Return of Breaking Law, the book

Monday 15 November 2021

FAMILY CASE STATEMENTS & ORDERS: The President threatens!

If you are due to make or prepare a witness statement or draft an order in a family case - it could be about financial remedies after divorce or a child welfare dispute - ignore the memos just produced by the High Court's Family Division's President at your peril. He's obviously fed up and he's in threatening mode. 

The memo on witness statements guides on what should go into and stay out of them. Too many statements, he says, are prepared in breach of proper professional standards. Ouch. He is mirroring a lot of the practice which must now be followed in the Business and Property Courts and he says, in effect, that if you do not play ball then these requirements will be imposed on you by (not the stocks, not a suspended prison, not firearm to the temple (or Temple) but).....a Practice Direction. In the meantime, materially depart from the guidelines, and the evidence contained in the offending statement could be excluded by the judge.  

What must statements do? For example: use the maker's own words; be confined to facts of which the maker has personal knowledge; where the witness sets out matters of which they have information and belief, indicate the source of them. And - stand by for the real stinker - there must be appended to each statement a list of any documents the witness has been referred to or shown for the purpose of the statement and these documents should be identified or described so that they can be easily identified at the hearing. There are special rules to be obeyed by a lawyer or anyone else assisting in the preparation of the statement. No attempt to alter or influence, thank you very much.

What must statements NOT do? Quote at length from any document; seek to argue the case; take the court through any of the documents; set out a narrative derived from the documents; express an opinion; use rhetoric; or, ideally, exceed 15 pages although 25 pages should be regarded as the maximum.

Litigants in person should follow the guidance as well. But, for a non-complex child dispute (not a care case), the memo has a template statement which is useful and covers the documents stuff.

The President has not stopped there. Another memo, this time on drafting orders which is intended for the lawyers, has flowed from his pen. He is fed up in private law cases with unnecessary verbiage and great delay in the production of agreed drafts. Attributing views to the court which did not from part of the decision must stop. Recording the position of a party before or during the course of hearing must stop. Background material in a financial remedies order will generally be unnecessary. More latitude will be allowed with consent orders. But restraint! When a lawyer has advocated, the order must be agreed, drafted and lodged before leaving court or, with a remote, on the day. If wholly impracticable, within two working days.

Again, no ball playing and there will be a Practice Direction.