Ashley Murray
Introduction:
I recommend Katie Tooley and Rhys Taylor’s excellent summary (‘PD27A Redux: March 2026 Family Court Bundle Changes Primer’ – https://financialremediesjournal.com/pd-27a-redux-march-2026-family-court-bundle-changes-primer/ ) of the revised changes to FPR Part 27A effective from 2nd March 2026.
Position Statements:
Within those changes are the requirements:-
- (Chapter 13.2), as previously, subject to any case specific directions of the Court, for the preliminary documents within the Court Bundle, if not already served and filed, to be filed no later than 11am on the working day before the hearing;
- ‘Preliminary documents’ as defined in Chapter 6.6, include (c) ‘the parties’ position statement;
- ‘Position statements’, pursuant to (Chapter 6.11) are deemed to be ‘the term for any form of written submission by a party or their advocate including a skeleton argument’;
- Such position statements, amongst other requirements (including their length and presentation) set out at Chapter 6.12, are to (d) be cross referenced to any relevant documents in the Bundle, (g) not to introduce any new factual allegations of evidence and (h) not to include any exhibits;
- The position statement pursuant to Chapter 6.13 and Chapter 10 where it is necessary to refer to an authority is, amongst other requirements (see Chapter 10.1 to 3), to (10.2) include a copy of the same (with, if applicable, an appropriate e-Bundle hyperlink) in a composite bundle agreed between the advocates and/or any unrepresented parties. Where a litigant in person is involved then the party seeking to cite such an authority must provide a copy of the same or a link to it in advance of a hearing.
In the previous PD 27A to be replaced as above from 2nd March 2026, it is to be noted that the Bundle (6.2) had to be provided to Counsel no less than 3 working days before the hearing with the requirement (6.3) that the same was then to be lodged with the Court no later than 2 working days before the hearing.
However, under the new PD 27A (see Chapter 13) the Bundle is to be filed and served no later 5 working days before the hearing and the time provision for delivery to Counsel is not repeated. Further, Chapter 13.3 plainly requires that the Bundle, once filed, must not be amended before the hearing without the Court’s prior agreement where e.g. there has been an ‘accepted error’ or if additional supplemental bundle documents are required.
Impact on Counsel:
On a first reading of these replacement provisions of PD 27A, one could be forgiven for thinking it will be ‘continue as usual’ for counsel instructed in financial remedies proceedings, particularly where their instructing solicitor is relieved of the previous expressed time limit to send out counsel’s instructions. In reality, however, now that counsel’s instructing solicitor will have to file and serve the Bundle a full 5 working days (rather than 2 days) before the hearing, the same is more likely to require counsel instructed as the advocate for financial remedies hearings to be engaged at an earlier stage both to advise on issues relating to the final content of the Bundle and to liaise with both his/her instructing solicitor and client as to the content of the final position statement. As a result, counsel instructed will need to provide more advance diary time than hitherto to accommodate the needed preparation required on a case-to-case basis. From the client’s point of view, this is to be welcomed.
The Family Bar to date has long enjoyed the unwritten indulgence of the Bench, albeit varying in degrees from Circuit to Circuit, in respect of the strict enforcement of the timetables applicable to counsel’s pre-hearing FPR preparation. Hitherto, many a counsel have been able to deliver out of time position statements/skeleton arguments under the excuse that they had only recently received the Bundle/brief instructions and thereby they have avoided any sanction of costs in the process. Indeed, there has been a long history of such an approach emanating from times when counsel would be booked in multiple cases on the same day and a Court’s list would frequently be sympathetically administered by the sitting judge to accommodate the ability of individual counsel to appear at some point once such other hearings had been dealt with.
For good professional reasons that approach over recent years has been progressively frowned upon. Family law and in particular, financial remedies cases require comprehensive preparation by all those involved. Counsel in such work are nowadays well remunerated. No client should be expected to pay counsel fees measured in £000s only to be informed at Court that their barrister will be delayed because he or she is appearing in another Court in the same building or worse on their way from another court location. Nor should counsel be giving explanations to clients at Court that they have not had time to prepare a fully argued position statement in the face of a well-prepared summary from their opposing counsel.
Specialist financial remedies counsel should be committed to accepting only a reasonable level of professional court commitments in any five-day working period. It is unprofessional and unacceptable when regularly undertaking such work to be preparing the same for the first time the night before the hearing by reason simply of the pressure of other cases accepted in that counsel’s diary. It is an arrogant attitude to suggest that counsel are intellectually able to assimilate the necessary detail of such case work at short notice, when in truth the reason is more likely to be either that counsel is well known amongst colleagues to never fully read the brief or the individual is far too focused on an ever increasing and in certain instances unjustified annual earnings return.
Whatever the reason, clients are entitled to better and to expect a willingness of Judges and other practitioners to call out such unprofessional shortcomings. For far too long, it should be said that certain solicitors have been complicit with counsel in indulging these practices. At the end of the day, it is the client’s finances and interests which are at stake and such familiarity whether by reason of regular instruction or personal friendships between the two sides of the profession should not be allowed to lower the professional duty each owes in such circumstances.
Whilst many specialist financial remedies counsel and their instructing solicitors are already dedicated to providing the highest level of service, the new PD27A appears poised to require all Chambers and individual barristers who accept financial remedies instruction to have to better accommodate more detailed planned diary time for both preparation and actual Court appearances.
If not, the new PD 27A, as did its predecessor, provides for sanctions (see Chapter 3.1). The difference now being that the direction of flow of these new rule changes may well suggest that under the revised provisions the Courts are more likely to expect all counsel to comply fully with their responsibilities – and not before time.