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:
Preparing for Chancery and Mercantile Trials in Leeds
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.
Appendix 6 runs to some 32 paragraphs, and I do not have space to reproduce it here.
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).
Two problems in particular have been of concern to me recently. They arise from points (b) and (c) above.
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.
Returning to the use of trainees, it should be possible for counsel tactfully to check with their instructing solicitors that a trainee who is preparing a bundle has been referred to Appendix 6.
This paper is in no way meant to be a rebuke, but is simply intended to help those who are charged with tasks which are often dull and unrewarding. I hope that it may make life easier for all of us.
Mercantile Judge, North Eastern Circuit
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