Draft order sent for sealing without me seeing it

[BigLes]

I’m aware that this is par for the course, but, the other party’s counsel (I was LiP) drafted and sent the draft order for approval and sealing today. I asked after the hearing to see a copy of the draft order, ex’s barrister said I wasn’t permitted. I received a copy an hour ago, there are glaring omissions and inaccuracies. I proposed amendments 30 mins ago. I just received a reply saying it was already approved and awaiting sealing.

I have sent my proposed amendments to the court via email just now but given that the court take months to respond usually, it will obviously be in vain. Is it worth me bothering or wasting further mental energy? Have there been any procedural errors? Or is what I described above totally fine and in accordance with procedures?

ta

 

[Pj66]

With my limited experience, i believe it is the responisiblity of the party who is represented to draft the order, and compile the bundle.

However, i dont believe it is procedurally correct to submit to court without review of both parties, im struggling to find concrete practice direction on this. I could be wrong

 

[BigLes]

With my limited experience, i believe it is the responisiblity of the party who is represented to draft the order, and compile the bundle.

However, i dont believe it is procedurally correct to submit to court without review of both parties, im struggling to find concrete practice direction on this. I could be wrong

Yeah I couldn’t find anything either. As I understand it, the judge or magistrate can direct any party (e.g. opponent’s barrister) to write the order and then judge approves it. Or the judge / magistrate can direct both parties to approve it beforehand. But obviously that just means that the opposition barrister is going to omit details and add details and generally twist the document to their own benefit. And this just means that I will have to apply via the Slip Rule to get the order amended. And this will piss off the magistrate who I hope to god I don’t see again as clearly the magistrate took an instant dislike to me. And when I say dislike, I mean burning hatred.

“Drawing up and filing of judgments and orders​

1.1 Rule 40.2 sets out the standard requirements for judgments and orders and rule 40.3 deals with how judgments and orders should be drawn up.

1.2 A party who has been ordered or given permission to draw up an order must file it for sealing within 7 days of being ordered or permitted to do so1. If he fails to do so, any other party may draw it up and file it2.

1.3 If the court directs that a judgment or order which is being drawn up by a party must be checked by the court before it is sealed, the party responsible must file the draft within 7 days of the date the order was made with a request that the draft be checked before it is sealed.

1.4 If the court directs the parties to file an agreed statement of terms of an order which the court is to draw up3, the parties must do so no later than 7 days from the date the order was made, unless the court directs otherwise.

1.5 If the court requires the terms of an order which is being drawn up by the court to be agreed by the parties the court may direct that a copy of the draft order is to be sent to all the parties:

(1) for their agreement to be endorsed on it and returned to the court before the order is sealed, or

(2) with notice of an appointment to attend before the court to agree the terms of the order.”

 

[Chi22]

If you're LIP, then the order is usually written by the lawyer for the other side. But it *must* be seen by you and *agreed* before going to the judge. The judge in my case has instructed the other side's barristers to sit with me after each hearing to agree the draft before it is sent to the judge.

Any other claim is (excuse my French) horsesh*t.

 

[BigLes]

If you're LIP, then the order is usually written by the lawyer for the other side. But it *must* be seen by you and *agreed* before going to the judge. The judge in my case has instructed the other side's barristers to sit with me after each hearing to agree the draft before it is sent to the judge.

Any other claim is (excuse my French) horsesh*t.

I wasn’t represented. In past experience, if both parties have a barrister then it’s passed back and forth and amended until it’s agreed upon.
I’m thinking because I’m a LiP they are allowed to just bypass me entirely? Which seems bloody unfair as I specifically asked to see the draft order and the barrister refused.

 

[BigLes]

• The draft order should be provided to you before being lodged with the court. It may contain directions such as preparing a statement, obtaining letters from professionals or filing reports and may list the matter for a further hearing. The order should follow a template, which can be checked online. If you feel that the order is not correct, don’t be afraid to ask questions with the person who drafted it as once sealed, whatever has been ordered will become legally binding.

From a solicitor website

 

[Chi22]

I wasn’t represented. In past experience, if both parties have a barrister then it’s passed back and forth and amended until it’s agreed upon.
I’m thinking because I’m a LiP they are allowed to just bypass me entirely? Which seems bloody unfair as I specifically asked to see the draft order and the barrister refused.

I can state categorically that this isn't the rule. If you are LIP, you are to see and agree a draft *before* it is sent to the judge.

Even if it is sealed - it hasn't been as far as I understand - it can be amended under The Slip Rule, which are also part of the Family Procedure Rules. Google 'Slip rule court orders' to see that amendments can be made for minor typos and if the order does not reflect the court's wishes.

 

[Pj66]

Whilst on this topic, what happens if both parties cant agree on the wording of a particular element of the draft order? Would you need to get some directions as to what the court had requested of the parties? How does this work?

 

[Chi22]

Whilst on this topic, what happens if both parties cant agree on the wording of a particular element of the draft order? Would you need to get some directions as to what the court had requested of the parties? How does this work?

I think what the court's wishes are is rarely in dispute. Often it's the other side craftily omitting something that can be held against them later on.

I would ensure that your dissent is included in the email to the judge and let the judge have the final say.

 

[Pj66]

I think what the court's wishes are is rarely in dispute. Often it's the other side craftily omitting something that can be held against them later on.

I would ensure that your dissent is included in the email to the judge and let the judge have the final say.

in my case, its the scope of the gp letter, i have disclosed mine with full details at the hearing, mother didnt submit one, and now her legal team is trying to change the scope so she just has to submit a generalised overview whilst having my full details already submitted. The disclosure has not been reciprocal and of the same scope. this is likely to try and sway the perspective going into a section 7 report.

I want to nip this in the bud before its too later and unsure of the proces,s as i will not be signing off on the draft if the submission is not the same scope.

Goign back to OPs question, her barrister cannot just send their version of the draft if i havent agreed can they?

 

[BigLes]

Whilst on this topic, what happens if both parties cant agree on the wording of a particular element of the draft order? Would you need to get some directions as to what the court had requested of the parties? How does this work?

When the two represented parties can't agree it gets sent back to the court to decide. Solicitors are pleased with this because the emails back and forth after a final hearing means they can still make loads of money! ha. I spent £800 in legal fees mainly to have an extra hour on a Sunday. It was worth it because we can now eat our tea as a family. But it's ridiculous having to fight for crumbs.

 

[BirminghamUK]

I’m aware that this is par for the course, but, the other party’s counsel (I was LiP) drafted and sent the draft order for approval and sealing today. I asked after the hearing to see a copy of the draft order, ex’s barrister said I wasn’t permitted. I received a copy an hour ago, there are glaring omissions and inaccuracies. I proposed amendments 30 mins ago. I just received a reply saying it was already approved and awaiting sealing.

I have sent my proposed amendments to the court via email just now but given that the court take months to respond usually, it will obviously be in vain. Is it worth me bothering or wasting further mental energy? Have there been any procedural errors? Or is what I described above totally fine and in accordance with procedures?

ta

This happens to me as a LIP, 9 times out of ten.

Verbal Directions are always made by judge when I raise this issue in every hearing.. just goes ignored.

 

[bujanin]

in my case, its the scope of the gp letter, i have disclosed mine with full details at the hearing, mother didnt submit one, and now her legal team is trying to change the scope so she just has to submit a generalised overview whilst having my full details already submitted. The disclosure has not been reciprocal and of the same scope. this is likely to try and sway the perspective going into a section 7 report.

I want to nip this in the bud before its too later and unsure of the proces,s as i will not be signing off on the draft if the submission is not the same scope.

Goign back to OPs question, her barrister cannot just send their version of the draft if i havent agreed can they?

Ash posted an order relating to a high court appeal on a neighbouring thread that is worth reading in entirety . Within the protracted court process there's an issue with the two sides agreeing the wording of the order, it all gets way out of hand and I think it became an issue within the bigger issue.

 

[Ash]

I think it's one of those tricks they do. Now they have submitted it without sending it to you first, they will likely get away with it. However someone else on here wrote to the court stating which parts were incorrect (and used magistrates notes from the hearing) and sent his own version of the order asking the court to approve that. The Legal Adviser didn't use his version but did say he was correct on the points and amended the order.

So I think that's the best thing to do now. You need to set out which wording is wrong - eg if it says the wrong time for changeover or the wrong nights of the week or the wrong number of holidays - and correct those saying what was agreed at court was xxxxxxxxxxxxxxxxxxx please correct the order wording.

But mostly they have probably worded it so it's ambiguous in places (in which case you also add to your email - this wording is ambiguous and I request clarity by changing xxxxxxxxxxxxxxxxxxx to yyyyyyyyyyyyyyyyyyyyy so the order is clear.

Also they may have added all sorts of unnecessary things like get out clauses or recitals that weren't agreed - if so state - these were not agreed at court and I ask that recital 4 and sentence 2 in clause bii is removed.

Go through it carefully before sending the email so you sound professional, on the ball and keep it easy to follow. If you've already emailed it doesn't matter, you can follow it up with another one saying - this is what I would like correcting in the draft order.

 

[Pj66]

how easy is it to get transcripts? i understand courts are slow processing emails, but are the transcript services generally fast ?

As @Ash you make a good point, hard to argue against transcripts if there are glaring differences in the draft.

 

[Resolute]

how easy is it to get transcripts? i understand courts are slow processing emails, but are the transcript services generally fast ?

As @Ash you make a good point, hard to argue against transcripts if there are glaring differences in the draft.

Transcrips are generally fast, you can pay a premium to make them faster still. If there is a judgement included, it needs to be approved by the judge. This can slow things down.

I got transcripts in 10-14 days.

 

[Ash]

Took me about three months. The delay is usually at the court end, not the transcription company end - they can turn it around in 48 hours.

What I meant PJ was not from a transcript, but just the fact that a legal adviser (or magistrates) were there, so would know what was said.

Big Les - was it Magistrates? If so did they produce a "Magistrates summary" type document? Because that's what the other guy used to show what was agreed at court. He also had a legal adviser there (and there usually is a legal adviser there if it's magistrates) who confirmed he was correct - clearly they make notes as well.

 

[BigLes]

Took me about three months. The delay is usually at the court end, not the transcription company end - they can turn it around in 48 hours.

What I meant PJ was not from a transcript, but just the fact that a legal adviser (or magistrates) were there, so would know what was said.

Big Les - was it Magistrates? If so did they produce a "Magistrates summary" type document? Because that's what the other guy used to show what was agreed at court. He also had a legal adviser there (and there usually is a legal adviser there if it's magistrates) who confirmed he was correct - clearly they make notes as well.

Magistrates yeah. It was a FHDRA so no facts and reasons document. I’ve not seen any notes from the Legal Advisor, magistrate made notes. The discussion of what the Respondent (child’s mother) was looking for was 2 paragraphs long and stated that Applicant (me) had breached the order (not “alleged” but “applicant has breached order on xyz”). My allegation that Respondent had breached the order, which was key to the argument I’m making, was not included. The purpose of the court application was described as “applicant has some concerns regarding nursery” and was a single sentence long compared to the paragraphs describing the Respondent’s position.

 

[Ash]

I'd definitely write to the court asking for corrections and ask for the legal adviser to confirm (and point out you were not shown the draft order before it was submitted to court). The legal adviser will remember even if nothing is written down. Suggest you ask for the four pages to be scrapped and the following inserted "xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx" but try and keep anger out of it and write what you want it replacing with to sound brief and professional.