PRACTICE DIRECTION 41C – PROCEEDING BY ELECTRONIC MEANS: APPEALS IN FAMILY PROCEEDINGS HEARD IN THE HIGH COURT
This Practice Direction comes into force on 1 February 2021.
This Practice Direction supplements rule 41.1 of the Family Procedure Rules 2010
1.1 This practice direction provides for the procedure by which, in the circumstances set out in this practice direction, appeal proceedings may be proceed by electronic means using an online case management system.
1.2 This practice direction comes into force on 1st February 2021.
1.3 In this practice direction-
“appeal proceedings” means -
(a) an application for permission to appeal; and
(b) an appeal;
“document” has the meaning given in rule 41.1 FPR;
“FPR” means the Family Procedure Rules 2010;
“HMCTS” means Her Majesty’s Courts and Tribunal Service;
“online case management system” means HMCTS’s online case management system which allows for specified steps in appeal proceedings to be undertaken online.
Types of appeal proceedings which may proceed by electronic means
2.1 On or after the date that is practice direction comes into force, appeal proceedings may proceed by electronic means using the online case management system where all of the following conditions are met-
(a) the proceedings were commenced on or after 7th October 2019; and
(b) the appeal would be heard by a High Court Judge sitting in the High Court.
(Practice Direction 30A, paragraph 2.1 and 2.2, summarise which decisions are appealed to a High Court Judge sitting in the High Court.)
Steps which may be taken by electronic means: outline
3.1 This practice direction enables a party to, in the circumstances set out in this practice direction, take the following steps by electronic means using the online case management system on or after the date on which this practice direction comes into force-
(a) file an application for permission to appeal;
(b) file an appeal notice;
(c) file documents in respect of an application referred to in sub-paragraph (a) or (b);
(d) file any other information requested or required by the court in respect of an application referred to in sub-paragraph (a) or (b);
(e) pay court fees; and
(f) view an electronic record of the progress of the application.
Application of the FPR and supporting practice directions
4.1 The FPR and practice directions supporting the FPR apply to proceedings to which this practice direction applies, subject to the provisions of this practice direction.
4.2 In particular, paragraph 8.1 of Practice Direction 30A (a requirement to file appellant’s notices at a postal address for the Family Division of the High Court) does not apply to proceedings to which this practice direction applies. Instead, paragraph 5.2 of this practice direction applies.
Proceeding by electronic means
5.1 Where this practice direction applies, parties may take a step outlined at paragraph 3.1 using the online case management system 24 hours a day every day all year round, including during out of normal court office opening hours and on weekends and bank holidays, except—
(a) where there is planned “down-time”: as with all electronic systems, there will be some planned periods for system maintenance and upgrades when the online case management system will not be available;
(b) where there is unplanned “down-time”: periods during which the online case management system will not be available due, for example, to a system failure or power outage, or some other unplanned circumstance.
5.2 Where this practice direction applies, documents that a party is permitted or required to file may be filed with the court by uploading them to the online case management system.
5.3 To file a document on the online case management system, a party must—
(a) access the online case management system via the website address specified by HMCTS (“the Website”);
(b) register for an account or log on to an existing account;
(c) enter details of a new case or use the details of an existing case;
(d) upload the appropriate document; and
(e) pay the appropriate fee.
5.4 Proceedings issued will be stored by the court as an electronic case file.
5.5 The Website contains further details, updated from time to time, on how to complete a filing, including in the event of down-time or where a particular document format is not compatible with the online case management system, information about the timing of any planned down-time, and a support email address to contact in the event of any down-time or when experiencing any other technical difficulty in using the Website.
The online case management system and alternative filing methods
6.1 Any document which is filed using the online case management system must not also be filed by some other means unless this is required by a rule, this or another practice direction, or by the court.
6.2 If the court has requested or permitted the submission of a document by e-mail then it must be so submitted as well as being filed through the online case management system.
6.3 Where an original document is required by a court order, rule or Practice Direction to be filed, such original document cannot be filed using the online case management system and must instead be physically filed with the court.
6.4 Proceedings commenced on or after 7th October 2019 which have not been started using the online case management system may be continued using the online case management system after documents originally submitted in those proceedings have been converted to PDF format. The proceedings will then continue as if they had been started using the online case management system.
6.5 Where paragraph 6.4 applies, the court may refuse to convert a document to PDF format where that document was originally submitted by some other means and may instead require a party to provide the document in PDF format.
7.1 Where parties file documents using the online case management system, the original signed documents, including the original exhibits to any witness statement filed, must be preserved and must be made available for inspection if required by another party to the proceedings or by order of the court.
General rules regarding issue and filing
8.1 Any document which is filed using the online case management system must—
(a) consist of one copy only unless required by a court order, rule or practice direction;
(b) be in PDF format (or in Excel format if appropriate) unless the court directs otherwise or unless the document is a draft order, in which case it shall be in “Word” format;
(c) not exceed 50 (fifty) megabytes or such other limit that may be specified by HMCTS; and
(d) be categorised or labelled as to the type of document that it is (e.g. “Witness Statement”, “Exhibit”); and
(e) be numbered sequentially.
8.2 Paragraph 8.1(c) is subject to any direction of the court restricting the number or length of documents to be filed.
8.3 In the event that a document exceeds the maximum limit specified in paragraph 8.1(c), the party seeking to file the document must divide the document into parts and file each part separately.
8.4 Parties can, in one filing, file up to 10 (ten) documents with each document not exceeding 50 (fifty) megabytes or such other limit specified by HMCTS.
8.5 In the event that a document is confidential and is required to be filed, it must, when filed in the electronic case file, be filed as a confidential document, using the process set up in the online case management system, in order to ensure that it is not visible to everyone.
8.6 Submission of any document using the online case management system generates an automated notification acknowledging that the document has been submitted and is being reviewed by the court prior to being accepted (the “Acceptance”).
8.6 The court may make an order to remedy an error of procedure made while using the online case management system, in accordance with rule 4.7 FPR. When the court makes such an order, a document filing will not fail Acceptance because of the error of procedure made.
8.8 Court staff may refuse to include a submitted document in its corresponding electronic case file if the document has been scanned and saved upside down or is otherwise illegible or incomplete.
8.9 Where court staff has not included a submitted document on its corresponding electronic case file for one of the reasons listed above, the submission will not have failed Acceptance, but the party that made the submission must upload the document again in accordance with court staff instructions in order for the document to be properly included on the corresponding electronic case file.
8.10 Where payment of a court fee is required to accompany the filing of a document, the date and time of filing on the online case management system is deemed to be the date and time at which payment of the court fee is made.
8.11 The date and time of payment is the date and time of issue for all applications submitted using the online case management system.
8.12 For all other document filed using the online case management system, the date and time of filing is the submission date and time for the purposes of any direction under the appropriate rules or for the purposes of complying with an order of the court, unless expressly provided otherwise by the court.
8.13 Once a document filing is accepted, a notification will appear on the online case management system account registered to the filing party to confirm that the document has been accepted and to confirm the date and time of issue or the date and time of filing in accordance with paragraphs 8.10 to 8.12.
8.13 The date and time of issue or the date and time of filing of a document submitted using the online case management system must not be delayed by Acceptance, unless the submission fails Acceptance because the filing error is more serious than an error of procedure, or the court orders that it has failed Acceptance for some other reason.
8.14 If the submission fails Acceptance, notice of the reasons for failure must be given to the party on that party’s account for the online case management system and if the submission was of a claim form or other document requiring to be issued, it will be deemed not to have been issued.
8.15 In cases where payment of the court fee has already been made and an appeal notice or other application fails Acceptance, the fee will be refunded and a corrected notice or application must be submitted and the court fee paid again in order for proceedings to be issued. In such cases, the new submission will generate a new date and time of issue or date and time of filing in accordance with paragraphs 8.10 to 8.12.
8.16 An appeal notice or other application filed by a party using the online case management system must, subject to Acceptance and fee payment, be issued by the High Court, and the case claim will proceed in that court unless it is transferred to another court.
8.17 If any documents that are not required by any rule, practice direction, order or direction to be filed are submitted using the online case management system, they may not be retained on the online account and/or electronic case file.
8.18 Filing of a document with the court using the online case management system does not mean that service of that document has been effected. The provisions of the FPR and supporting practice directions relating to service will apply to a case on the online case management system as they would apply to any other case.
Payment of fees
9.1 Where any fee must be paid, a party filing a document using the online case management system must, except in circumstances specified in paragraph 9.4, pay the appropriate fee by account or by credit/debit card or by any other online method specified by HMCTS.
9.2 When a party enters its payment by account number into the online case management system when prompted by the online case management system to do so, that party will be deemed to have made the payment. The party will thereby owe the relevant court fee to HMCTS.
9.3 The court must keep a record of when payment was made or deemed to have been made.
9.4 For filings other than the issue of an application which incurs payment of a fee, a party who is not legally represented and who wishes to pay that fee by account or by credit/debit card must make the filing and the payment through the online case management system.
9.5 A party who has applied or wishes to apply for Help with Fees or partial Help with Fees must contact the court to obtain a Help with Fees payment by account number, prior to using the online case management system to issue appeal proceedings which require the payment of a court fee.
10.1 When the court issues an appeal notice or other application which has been submitted using the online case management system and has been accepted by the court, the court must electronically seal the notice or application with the date on which the relevant court fee was paid, and this shall be the issue date, as per the provisions of paragraphs 8.10 to 8.16.
10.2 The electronic seal may differ in appearance to the seal used on paper.
11.1 The court must electronically return the sealed and issued appeal notice or other application to the relevant party’s account on the online case management system and notify the party that it is ready for service.
(Rules 30.4(4) and 30.5(6) FPR and Part 6 FPR make provision regarding service.)
Transfer of proceedings and file transmission
12.1 If appeal proceedings which have used the online case management system are subsequently transferred to a court which does not operate the online case management system, no documents will be able to be filed in those proceedings through the online case management system after the date of transfer and this practice direction will cease to apply to those proceedings.
12.2 HMCTS must make arrangements for a version of the electronic case file of any transferred proceedings to be made available to the receiving court in a format requested by the receiving court.
Applications in proceedings
13.1 Where a party to appeal proceedings files an application for an order or other relief using the online case management system and the court determines that a hearing is required, the party filing the application must lodge an application bundle with the court.
13.2 The application bundle may be lodged in electronic format.
13.3 The application bundle must—
(a) also be filed as a paper copy, unless ordered otherwise;
(b) contain the application notice and any evidence filed in the application, including exhibits together with such other documents as may be required by any rule, practice direction or order of the court; and
(c) be filed in accordance with the time limits required by any applicable rule, practice direction or order of the court or, in the absence of such a requirement, 3 (three) days before the hearing.
13.4 The electronic copy of the application bundle must—
(a) be filed using the online case management system;
(b) be formatted as one PDF document with bookmarks as appropriate for each document and with section headings within the document, unless its size exceeds 50 (fifty) megabytes, in which case it can be divided into up to 10 (ten) documents of that size, each bearing bookmarks as appropriate; and
(c) be updated as required and filed in compliance with paragraphs (a) and (b) above.
13.5 The copy in paper format should be indexed and should correspond exactly to the electronic version of the bundle including sequential pagination.
Case and cost management and other directions
(a) a rule, practice direction or order of the court requires—
(i) the court to give case management or other directions, whether at a hearing or not; and
(ii) a bundle to be filed with the court in connection with case management or other directions; and
(b) a party wishes to file the bundle using the online case management system,
the bundle must contain such documents as are required by any rule, practice direction or order of the court.
14.2 The bundle must be filed in paper copy as well, unless the court orders otherwise.
14.3 The applicant is responsible for ensuring the electronic copy of the bundle complies with the requirements specified in paragraph 13.4.
14.4 The applicant is responsible for ensuring the paper copy is indexed and corresponds exactly with the electronic version of the bundle with sequential pagination.
Bundles for hearings
15.1 Subject to any direction of the court, the bundle for the hearing of-
(a) a contested permission application; or
(b) an appeal,
must be filed with the court in paper format and must comply with paragraph 13.5.
15.2 Subject to any direction of the court, an electronic version of the bundle must also be filed, in which case it must comply with the requirements of paragraph 13.4.
15.3 The court must retain any electronic copy of the bundle for a period of 2 (two) months after judgment has been delivered, after which it may be deleted.
15.4 The time in paragraph 15.3 may be extended by order of the court at the request of a party or on the court’s own initiative.
16.1 HMCTS must take such measures as it thinks fit to ensure the security of information communicated or stored electronically. These may include requiring persons using the online case management system to follow security steps such as—
(a) entering an email address as their customer identification and/or password;
(b) providing personal information for identification purposes; and
(c) complying with any other security measures as may from time to time be required before using the online case management system.