NCBA

HHJ Langan QC has asked the Association to make members aware of some issues involving cases heard in Leeds. He has kindly prepared the following paper to which all members are encouraged to read:

Generally speaking, the specialist judges at Leeds Combined Court Centre find that the preparation of cases for trial is of the high quality which enables hearings to run smoothly from opening to judgment. There are, however, two areas in which there has over the last year or so been a significant decline in standards. This paper is intended as a gentle reminder: and we would be grateful if members of the Association were to bear it in mind when liaising with their instructing solicitors.

No one can be expected to get time estimates right all the time. But there have been several recent instances of cases with an estimate of five days or so turning out to require ten or twelve days in court. Given other commitments of judges, advocates and witnesses, this often entails a gap (or two gaps) of several months between different instalments of the hearing. This is not just inefficient: where the case turns largely on the assessment of oral evidence, it increases the likelihood of real or perceived injustice when judgment is eventually handed down.

Much of the trouble could be avoided if litigators, in collaboration with their opponents and their own likely trial advocate, would at key stages of the litigation process (e.g., exchange of statements, exchange of experts’ reports, PTR) keep an eye on the existing time estimate, review it and, if there is any change, inform the listing officers without delay. Finally, when the pre-trial checklist is being compiled, or the court is being notified that directions have or have not been complied with (see Chancery Guide, Appendix 3, paragraph 27), there will be a last opportunity to reconsider the time estimate: and at this stage liaison with the trial advocate is not just desirable, but essential.

I recently tried a short commercial landlord and tenant case. There were 1400 pages of documents in the trial bundle. For the purpose of writing the judgment, I extracted and took home every page which had been referred to at the hearing plus many other pages which I thought that I might need: the total came to 130 pages. This is, unfortunately, an example (an extreme one, admittedly) of something which is becoming all too common.

I try hard not to sound off in court on this subject. The representative from the claimant’s solicitor who has prepared the bundle is probably in court and probably a trainee. I assume that he or she has not received any proper instruction or supervision – in which case, public criticism would be unfair. But it is really important in the interests of the effective conduct of trials that much greater attention should be given to the preparation of bundles, and I hope that what follows may be of assistance.

The two principal sources for guidance are paragraph 3 of PD39 (the Practice Direction on Miscellaneous Provisions Relating to Hearings) and Appendix 6 (Guidelines on Bundles) to the Chancery Guide. The provisions of Appendix 6 are appropriate, not just for actions proceeding in the Chancery Division, but also for actions heard in the Leeds Mercantile Court and for cases marked as ‘Chancery Business’ in the county court.

What I would like to do is to commend a careful reading of Appendix 6 to all those concerned with the preparation of bundles, and to point out the eight sins which are most frequently committed against the Appendix. These are: (a) unnecessary inclusion of more than one copy of the same document (paragraph 3); (b) failure to arrange documents chronologically (paragraph 6); (c) failing to tailor the size of a bundle to its contents and, in particular, including more than 300 pages in one bundle (paragraph 14); (d) using binders which are, or are prone to become, defective (see paragraph 15); (e) not labelling bundles clearly (paragraphs 18 and 19); (f) not inserting in the margins of witness statements cross-references to the pages at which documents referred to in the statements are to be found (paragraph 24); (g) failing to place witness statements (and experts’ reports) and documents referred to in the statements (and reports) in separate bundles so that the reader can see both the text and the document at the same time (paragraph 25); (h) unnecessary inclusion of inter-solicitor correspondence (paragraph 29).

As to (b) (chronological arrangement of documents), the fact that a print-out of an e-mail often has appended to it the earlier e-mail to which it is a reply (and sometimes a whole sequence of e-mail traffic in reverse date order) can be a cause of real confusion to a reader. Judicious use of a photocopier and a sheet of white paper to blank out material prior in time to the e-mail which is being copied can do much to address the problem.

With regard to (c) (size of bundles), overloaded bundles are a real impediment to the efficient handling (in both senses!) of a case. Please remember the 300 page limit: it is a good general rule that, if in doubt, the number of bundles should be increasede and the size of individual bundles correspondingly reduced.

The seminar programme for 2010 is currently being finalised; details will be posted in due course.

CHANCERY DIVISION
NORTHERN CIRCUIT
PRACTICE NOTE: APPLICATIONS DAYS

1. The existing pattern of three applications day per month in Manchester and one application day per month in Liverpool has been under review since January 2008.

2. An analysis of the number of applications in cases issued in Manchester and in Liverpool over the last 12 months has shown not only that a substantial majority were Manchester cases but also that the great majority of applications heard on the monthly Liverpool applications day were from Manchester. Indeed on some of those days there were no Liverpool applications at all.

3. Having consulted interested parties, the Vice-Chancellor has decided that the practice of a monthly applications day in Liverpool should cease and that for the future, with immediate effect, the weekly applications list will be heard in Manchester.

4. At the same time, this opportunity is being taken of reiterating that Liverpool cases should be tried in Liverpool. Any decision to list a Liverpool case for trial out of Liverpool must be taken by one of the specialist circuit judges or by the Vice-Chancellor. If the decision is taken to list for trial out of Liverpool, a statement of the reasons will be provided to the parties and kept on the case file.

5. Every effort will be made to hear in Liverpool shorter matters in Liverpool cases listed for hearing by the SCJs (PTRs, appeals, applications directed to be heard by order), either by listing a number of them for the same day or by listing them on days when a SCJ is in Liverpool for a trial. This will be kept under review to ensure that it works efficiently.

David Richards J
Vice-Chancellor of the County Palatine of Lancaster
15 May 2009

CHANCERY DIVISION AND CHANCERY BUSINESS
NORTHERN CIRCUIT
PRACTICE NOTE - BUNDLES AND SKELETONS

1. Despite attempts to encourage compliance with the Chancery Guide and express case management directions concerning the lodging of skeleton submissions, written opening submissions, trial and application bundles, parties continue to ignore these requirements on a wide spread basis at all levels of case. This means that the judges concerned cannot pre-read at all or cannot pre-read efficiently. This results in hearings lasting longer than need otherwise be the case which in turn means that hearings are more expensive for the parties than is necessary and court time is not used as efficiently as it might be. None of this is acceptable.

2. Set out below is the practice that is to be adopted in all cases taking place either in the High Court, Chancery Division, Manchester, Liverpool or Preston District Registries or in either the Manchester Liverpool or Preston County Courts which have been marked 'Chancery business'.

3.Bundles
a. A Copy of the trial, application or appeal bundle and any bundle of agreed authorities and other legal materials is to be lodged with the relevant court or direct registry office by no later than the time fixed by any express direction given at either a case management conference or pre trial review or if no such order has been given then as directed by the Chancery Guide. The requirements of the Chancery Guide are summarised in the Appendix to this Note.
b. Only one copy of the Bundle must be lodged. Copies for use by witnesses must be brought to the court on the day of the hearing unless previous arrangements have been made with the listing officer before hand or a direction to different effect has been given at either a case management conference or pre trial review.

4. Skeleton and Written Opening Submissions
a. Skeletons are required to be lodged on behalf of all parties to any appeal or trial. Skeletons must be lodged with the relevant District Registry or Court office no later than the date and time fixed by any express direction given at a case management conference or pre trial review or if no express direction has been given then by no later than the time fixed by the Chancery Guide. The requirements of the Chancery Guide concerning the lodging of skeletons are summarised in the Appendix to this Note.
b. In relation to all chancery applications, skeleton submissions must be lodged by no later than the day and time fixed by the Chancery Guide. In the event that compliance is not possible (for example because the application is made without notice in circumstances of great urgency) then a short explanation for the failure to comply should be set out either in the body of the skeleton or, preferably, in an e mail or fax to the Court concerned marked for the immediate attention of the judge concerned. Explanations to the effect that instructions have been received late are not acceptable unless the date and time at which the solicitor and counsel received instructions is set out.

5. Sanctions
a. The Chancery Guide sets out the sanctions available to the court in the event that bundles or skeletons are not lodged as required. They are summarised in the Appendix. Parties who lodge skeletons late may expect some or all of the sanctions referred to be imposed in the absence of exceptional circumstances.
b. The practice adopted at the Royal Courts of Justice referred to in paragraph 7.31 of the chancery guide will be adopted on this circuit from 1st November 2008. These records will be reviewed by the Vice Chancellor of the County Palatine of Lancaster each time he sits on circuit. He will consider such further action as appropriate in relation to any recurrent failure by any chambers, barrister or solicitors firm to comply with the directions contained in this Note.

David Richards J
Vice-Chancellor of the County Palatine of Lancaster
Manchester
17th October 2008

APPENDIX
BUNDLES - see Chancery Guide, Paragraphs 7.9-7.16 and 7.43
Subject to any express direction given at a CMC or PTR, one copy of a properly prepared bundle is to be lodged at the District Registry or Court office concerned not less than 2 clear days and not more than 7 clear days prior to the hearing - see chancery guide paragraph 7.16. For what constitutes a properly prepared bundle see Chancery guide, paragraphs 7.9-7.15. This direction applies both to hearings before High Court, Circuit and District Judges except interim applications.
Bundles for interim applications are to be delivered to the relevant District Registry or Court office by no later than 10 am on the day prior to the hearing unless the court otherwise agrees - see Chancery Guide, Paragraph 7.16. The agreement of the court means the agreement of the judge hearing the application or a judge of coordinate jurisdiction.
SKELETONS - see Chancery Guide, Paragraphs 7.20-7.23 and 7.47
Trials and applications by Order - 2 clear days before the date or first date on which the hearing is due to start;
Applications without notice - with the papers which the judge is asked to read;
Applications other than those referred to above - No later than 10 am on the day prior to the hearing;
Hearings before District Judges - With Bundles.
SANCTIONS - see Chancery Guide, Paragraph 7.30
Failure to lodge skeletons or bundles in accordance with the directions contained in this Note may result in:
(i) the matter not being heard on the date in question;
(ii) the costs of preparation being disallowed; and
(iii) an adverse costs order being made.