New guidance: Advocates meetings and Position Statements for cases at the CFC

10 Dec 2021

New guidance: Advocates meetings and Position Statements for cases at the CFC

The DFJ, HHJ Lynn Roberts has informed the FLBA that the CFC will now be stricter with submissions of position statements and timings of advocates meetings. This is due to the CFC increasingly having to vacate hearings because of absence or late submissions.

As per Recommendation 26 in Mr Justice Keehan’s Public Law Working Group Report:

  • Advocates’ meetings must take place no later than two working days before the hearing.
  • Position Statements must be received by the court no later than 4 pm on the eve of the hearing.

Failure to do so may incur wasted costs orders and/or cases may be delayed.

The Family Procedure Rules 2010 themselves say that bundles must be provided to counsel by 3 days before the hearing and that the position statement is due in by 11am the previous day (not specifying whether it should come from counsel or solicitors), and failure to comply can be sanctioned with wasted costs.  Some courts do enforce the even stricter position in the rules.

We are very anxious to avoid either our instructing solicitors or our barristers receiving wasted costs orders because of late position statements.  We hope that you will understand that we are therefore asking for counsel to be given the bundle (or at least adequate papers) and a brief (or at least an e-mail summarising the client’s ascertainable instructions on any points that may arise at the hearing) by no later than 3 clear days before the hearing. We fully understand that there will sometimes be circumstances which mean that updates and fuller briefs might have to come in later.

We do understand that there are cases where solicitors still prefer to draft the position statement themselves.  If we have not received papers by 3 clear days before the hearing, we will assume that you intend to draft the position statement in-house and will, when asked, notify the court accordingly.  

We’re sorry to be putting increased pressure on your already busy workloads, but we think this is the only way to protect you and us from the new stricter policy.

At present, the DFJ’s comments only relate to hearings at the CFC, other courts have previously had similar policies and others are likely follow suit.  The FPR 2010 of course applies to all courts.  For that reason we are adopting a common policy for all courts rather than just the CFC.

If you have any questions or wish to discuss further, please do not hesitate to contact our Senior Practice Manager Scott Haley.

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