Those of us who have been campaigning since the last years of the last century for the use of digital resources in the family courts have felt as if we have been crying in the wilderness for someone to hear us but with our voices deafened by the need for other reforms and with other resistance to change. Yet far more IT usage will make considerable savings on costs, time and other efficiencies. It might even produce better justice!
Things may be changing. Two developments carry important portents
In George Osborne’s late autumn budget there was dramatic cuts to the budgets of most government departments including the Ministry of Justice. But there was the announcement from the Treasury of £700 million investment, admittedly through selling underused courts, million in courts and tribunal’s over the next five years “to fully digitalise the courts” with installation of better technology in courtrooms and buildings with consequential changes to procedures. This is excellent news. For too long the family courts have seemed to be stuck in a Jurassic existence. It was in the late 1990s that I heard that the family courts in San Francisco and Singapore, and perhaps elsewhere, were accepting online filing and other digital use. When working in Sydney 12 years ago I saw judges fixing their own future hearings through computers on their own desk. Yet in the past decade clerks in family courts have been operating systems which seemed to have more similarity with DOS than Windows 10!
As mediators and arbitrators we resolve disputes through electronic means, email and Skype. So why not the courts? ODR, online dispute resolution, maybe a little time ahead in the family courts themselves but we can make much electronic progress before then. It must be hoped that this government expenditure will be well spent and produce good dividends
But there are already some excellent developments. The Family Procedure (Amendment No 3) Rules 2015 (2015 No 1868 (L21) were laid before Parliament on 10 November 2015 and, with one minor exception, came into force on 7 December 2015. They introduce new provisions for filing documents with and sending documents to the court by email. It is alongside new Practice Direction 5B. The changes affect all family lawyers operating with even a modicum of electronic, digital communication
There is a new R 5.5 which provides for a practice direction, now PD 5B, to make provision for documents to be filed with or sent to the court by email. Rules 6.23 and 6.26 are also amended to provide for email service. Law firms need now to give better consideration to whether they will accept service by email including email addresses which might be available for, or vulnerable to, service by email.
The practice direction is 5B and is very similar to its equivalent in CPR, but not identical.
It applies to documents in family court proceedings other than adoption proceedings. Correspondence with the court is only through specified email addresses set out in the guidance given in the PD. As always, know your local court and which addresses are appropriate for these purposes. Urgent applications can be made and are specifically defined in PD 5B para 1.5.4
There are specific provisions for local authorities and CAFCASS
Chapter 3 of the PD applies to lawyers. We may email the court or attach a specified document to an email to the court and send an application to the court. Where a fee is payable, a fee account number, credit card number or debit card number must be supplied and the court authorised to take for the fee. Many law firms now operate this with their local family court.
There are specifications for what cannot be sent by email. It must be no more than 50 pages, and if double sided must not exceed 25 pages to include the email, attachments and any documents required to be served. This will be a challenge including with some long court application documents. The entire size of the email including attachments must not exceed 10 MB. See 3.3. A breach will mean the email will not be accepted. Great care will be needed
The email to the court must set out the name of the sender and address for contact which can be an email address. It must be in plain text or rich text rather than HTML. Rule 29.1 still applies where an address is not to be notified to the other party. Completed forms required by the rules or practice directions must be sent as attachments. Otherwise the letter or other communication can be in the content of the email or as a separate attachment e.g. letter on electronic letterheading or PDF.
Attachments must be in a format supported by the court software. This is set out in specific guidance referred to in the PD. It seems to include word and PDF documents but seems not to include Excel. See 4.5. This may be a matter for further discussions.
Where the email relates to existing proceedings, the subject line of the email must have, to the extent space allows, the case number, parties names (abbreviated as necessary), the name of the judge or other person before whom the case has been listed if known and the date and time of any hearing. See 4.6.
The PD is clear that when an email has been sent to the court, a hard copy of the email or attachment must not also be sent. Some firms still have a policy of emailing and then putting the hard copy in the post at the same time. This cannot hereafter happen with the court.
Distinctive provisions apply regarding timings. In respect of applications received after 4:31 PM and before midnight, the date of issue will not be before the next day the court is open. Some practitioners might view this a little cynically and regard the date of issue as being several weeks after it is received! But the point is that the date of issue will never be the date of receipt if after 4:30 PM. In respect of emails, the date of receipt, if after 4:30 PM and before midnight, will be the next day the court is open. See 5.2 and 5.3. This is a clear separation of course in both law and practice between receipt and issuing.
Where a time limit applies to the receipt at court or the filing of a document, and it is delivered by email to the court, it is the responsibility of the person or party who is subject to the time limit to ensure the document or application is sent within the applicable time limits taking account of this above provision and see 5.4
Crucially a court officer may reply by email to an email to the court where it relates to proceedings which are not adoption proceedings. See 5.5. This is another warning to all lawyers to make sure that email is checked regularly. It is now no longer any good emailing the court and then leaving the email inbox unchecked for any time. The court may reply and the lawyer will therefore be deemed to have the courts response. Saying that the email was unchecked would not be sufficient according to this PD. Many of us rely on automated response messages if we are unavailable through e.g. being in meetings or at court or on holiday for any period. The PD does not anticipate that the court officer would then be any obligation to forward on the email to whoever is looking after the work of the lawyer in their absence. Some court officers might. There is no obligation to do so. This carries real consequences for lawyers and will mean many firms have to review their policy. Regular checking or automatic forwarding may now be more important than the automated response message following this PD
The PD concludes in this section by saying that if documents sent by email require urgent attention, the sender should contact the court by telephone. See 5.6. This is wise counsel, albeit somewhat perhaps optimistic given the present delays when telephoning some courts and the disconnect between the staffing of the telephone switchboard and those processing emails
Finally there is reference to statements of truth. Where someone wishes to file a document containing a signed statement of truth by email, the person should retain the document with the original signature and deliver electronically to the court a version of the document with either the name of the person who signed the document of truth typed underneath the statement or the person who signed the statement of truth has applied a facsimile of their signature to the statement in the document by mechanical means. The court may subsequently require a person to produce the document containing the original signature. See 6.1 and 6.2. This is no more than many of us have been already undertaking but now has the benefit of an explicit guidance from the court.
This is all very good indeed. It is as many of us have been operating but it is now on a formal and explicit footing with clear guidance as to what should and should not happen. It will mean law firms and barristers will need to review their internal policies in email usage, both outgoing to the court and incoming.
We do not yet have a digital family court and we continue to hope that it will arrive soon. But this development of the rules and PD, coupled with the indication of government funds for greater technology usage in the courts, is tremendous progress and much to be welcomed