The president of the Family Division has issued a public warning to practitioners over the preparation of witness statements and drafting orders.
In memorandums revealed this week, Sir Andrew McFarlane mentioned too many witness statements have been ready ‘in breach of proper professional standards’ whereas drafting orders have grow to be a ‘highly adversarial and confrontational process’.
McFarlane mentioned the basic requirement of a witness assertion was to inform the events and the court docket what proof a celebration intends to depend on at a remaining listening to. It should not quote at any size from any doc, search to argue the case, take the court docket by means of case paperwork, set out a story derived from the paperwork, categorical the opinions of the witness or use rhetoric.
The family chief mentioned a follow path will probably be thought of if the rules in his memorandum weren’t noticed.
Drafting orders in personal legislation, he mentioned, had grow to be a extremely adversarial and confrontational course of, main to ‘much unnecessary verbiage and great delay’ in producing agreed drafts.
The ‘first and most basic rule’ is that the place the order follows a listening to, its phrases should replicate the results of the listening to, ‘no more, no less’.
Events shouldn’t search to introduce adversarial and partisan statements within the recitals. They need to not search to attribute views to the court docket that didn’t kind a part of the court docket’s resolution. ‘This is a surprisingly prevalent practice and gives rise to much controversy. It is a practice that must cease,’ McFarlane mentioned. Events also needs to cease making an attempt to file the celebration’s place earlier than, or throughout, the course of the listening to.
Once more, McFarlane mentioned a follow path might be issued if the rules set out in his memorandum weren’t noticed.