In Davis Solicitors LLP -v- Raja  EWHC 519 (QB) Mr Justice Supperstone refused the claimant relief from sanctions following a failure to comply with directions on appeal in relation to the filing of a bundle. There are important practical lessons.
The claimant sued for fees owed. At trial the judge gave judgment for the defendant for £6,000 and £590 interest. With costs the total sum due was £21,613.08. The claimant appealed and the court made an order that a skeleton argument and Appeal Bundle by the 17th March 2014. In default the appeal would be struck out.
- The claimant filed a skeleton argument but never filed an appeal bundle.
- When the action was declared to be struck out the claimant argued that it had failed the full papers in the trial bundles and sought discharge of the striking out without the need for a formal application for relief from sanctions.
- The court refused an “informal” application and the claimant made a formal application for relief from sanctions.
- That application for relief was dismissed and the claimant appealed that dismissal.
- A failure to file an appeal bundle in accordance with the rules is not a “trivial” breach.
- It would have been prudent to have filed an appeal bundle when the application for relief from sanctions had been made (the judge indicating that relief would have been granted in these circumstances).
- This highlights an important point in relation to relief from sanctions applications – remedy the breach as soon as you can and certainly well before the date of the hearing of any application for relief from sanctions.
THE DECISION AT FIRST INSTANCE
The Decision of HHJ Mitchell
- The judge noted that (1) the Claimant says that “she had already delivered the papers that were necessary for the appeal to the respondents, who do not seem to deny that is the case, but what they do say is, ‘…that they never received an appeal bundle. That is the case with the court’.” (para 2); (2) Ms Ballard maintains that “she was not required by 6.5 to serve a bundle; not required by the rules” (para 3).
- The judge referred to the fact that in early April 2014 by letter Judge Wulwik drew Ms Ballard’s attention to the fact that there was no bundle at court as required by PD 52B, para 6.4. He said that the purpose of requiring a bundle “is to enable the court to pick up the case without having to rummage through the file and find individual documents” (para 3).
- The judge noted that the application for relief from sanctions was made promptly and stated that if Ms Ballard had filed a bundle at that stage “it seems to me it would be likely that I would be granting relief from sanctions” (para 4). However
“the position is that no appellant’s bundle was filed and it still has not been and the result is that the court is at a disadvantage. … this is not a trivial breach. It could have been remedied by filing an appellant bundle, with the application for relief from sanctions and I would almost certainly have granted relief. But the case has just wandered on without that having been done and I am being faced with having to rummage through the papers to try and makes sense of what is being said”(para 4).
“… although I could not form a definitive view because I have not had enough time, it seems to me it is highly dubious as to whether there are grounds of appeal at all. If there were substantive grounds, they seem to concentrate on the disrepair, whereas the judgement concentrates, to a large extent, on the professional conduct and in those circumstances, although it is not a matter for me, it does seem to me that I have to look at the merits of the appeal and they do not seem to me to be very strong.”
The claimant appealed arguing that:
- The breach was not significant.
- The defendant’s action was opportunistic.
- The judge erred in considering the merits of appeal.
THE DECISION ON APPEAL
- Ms Ballard submits that the failure to file an appeal bundle was not a significant breach of CPR PD 52B because all relevant documents had been served on the Defendants and the Claimant had complied with all court orders in every other respect. There was, she submits, no prejudice to the Defendants because permission to appeal had not yet been granted and therefore there was no need for them to incur any costs.
- I reject this submission. Paragraph 6.3 of PD 52B requires an appeal bundle, paginated and indexed, to be filed as soon as practicable, but in any event within 35 days of the filing of the Appellant’s Notice, which in this case was by 4 February 2014. Paragraph 6.4 identifies the documents that must be included in the appeal bundle and the documents that should also be considered for inclusion. Not only did the Claimant fail to comply with the Practice Direction, but Ms Ballard ignored the ‘unless’ order of Judge Wulwik of 3 March 2014 relating to the lodging of an appeal bundle. She made no application to set aside the ‘unless’ order. It was only after the order of 31 March 2014 striking out the appeal that she wrote to the court. In fact, as Mr Dean, for the Defendants, observes it was not strictly necessary for the judge to make the order of 31 March 2014 as the Claimant’s failure to lodge an appeal bundle by 4pm on 17 March 2014 would have resulted in the appeal being struck out without further order, pursuant to the terms of the order of 3 March 2014.
- At various points in the appeal process Ms Ballard has attempted to explain why the default occurred. Mr Dean describes the reasons that she has given for the default as being “fluid”. First she said in her statement dated 7 April 2014 in support of the Claimant’s application for relief from sanctions that she had filed a bundle of documents used at the trial at the court on 31 December 2013 (para 7), and that skeleton arguments for the appeal were filed and served on the court and the Defendants’ solicitors on 17 March 2014 (para 10). In her letter of 2 April 2014 she said that “the appeal bundle was filed with the court on the 31st December 2013″. The letter continued: “the bundle consisted of the full papers in the Trial bundles”. At this point she was not accepting there was a breach of the Practice Direction.
- Now her position is that whilst she considered it unnecessary to file an appeal bundle, she accepts that she was in breach of the Practice Direction. However she states that the reason she made no attempt to correct the breach or even to serve an appeal bundle before the hearing before Judge Mitchell was because she did not think that filing an appeal bundle would assist. She thought, she says, that what was important was to make an application for relief from sanctions as promptly as possible. She stated that she thought it was only necessary to have an appeal bundle once permission has been granted. She did not appear to appreciate the need for applications for permission to appeal to be presented in accordance with the rules so as to ensure the effective management of the appeal process at the permission stage.
- At another point during the course of her oral submissions Ms Ballard said the reason she did not file the Appellant’s bundle was because she did not have the sealed notice of appeal. She also said that there was nothing else to put into the agreed bundle which was required by the terms of paragraph 6.4 at the time.
- Ms Ballard made the point before Judge Mitchell, in her grounds of appeal (para 9) and in her written submissions to this court (para 2), that the Claimant was not in breach of PD 52B 6.5. This is correct, however it illustrates her failure to appreciate the importance of complying with PD 52B 6.3 and 6.4. Even now Ms Ballard has produced an incomplete and not properly paginated “Appeal Bundle“. I can well understand the difficulties that Judge Wulwik and Judge Mitchell must have encountered when dealing with this case in the absence of any appeal bundle.
- I reject Ms Ballard’s submission that the Defendants have, by their solicitors’ letter of 19 March 2014, bringing to the court’s attention the Claimant’s breach of the Practice Direction, acted “opportunistically and unreasonably” (see Denton, para 40) because they had the trial bundles. As Mr Dean points out that letter was written after the ‘unless’ order was made on 3 March 2014 and after 17 March 2014 when the appeal had been, at least arguably, automatically struck out (see para 26 above). In any event the recitals to the Order of 31 March 2014 make clear that Judge Wulwik in making that Order did not rely on the letter from the Defendants’ solicitors alone (para 11 above).
- Judge Mitchell described the breach in this case as being “not a trivial breach” (para 4). In Denton the Master of the Rolls and Vos LJ stated (at para 26), that “it would be preferable if in future the focus of the inquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant”. In the circumstances I have referred to I consider the breach in this case to be serious and significant.
- Ms Ballard has explained why the default occurred. I do not consider any explanation she has given constitutes a good reason. She has put forward reasons for not complying with PD 52B 6.3 and 6.4 which indicate a continuing lack of understanding of the importance of the rules. The purpose of PD 52B 6.3 and 6.4 is clear. It is to assist the orderly conduct of appeals throughout the appeal process.
- In considering “all the circumstances of the case” as Rule 3.9(1) requires the court to do, Judge Mitchell was entitled to have regard to the merits of the underlying appeal. Having read the judgment of DDJ Parker and the grounds of appeal, I consider that Judge Mitchell was plainly entitled to form the view that the merits of the appeal “do not seem to be very strong” (see para 23 above).
- Judge Mitchell was also entitled in considering all the circumstances of the case to have regard to the fact, as he did, that even by the time of the hearing before him, more than five months after the date by which the appeal bundle should have been filed, the Claimant was in continuing breach of the Practice Direction. The fact is that Ms Ballard had deliberately decided not to comply with the Practice Direction and the ‘unless’ order because she considered that what she had done in terms of filing and serving documents for the appeal was sufficient.
THE RULES IN RELATION TO APPEAL BUNDLES
For appeals in the county court and High Court Practice Direction 52B applies. It is no good simply re-submitting the trial bundle.
“6.3 Appeal bundle: As soon as practicable, but in any event within 35 days of the filing of the appellant’s notice, the appellant must file an appeal bundle which must contain only those documents relevant to the appeal. The appeal bundle must be paginated and indexed.
6.4 Documents relevant to the appeal:
(1) Subject to any order made by the court, the following documents must be included in the appeal bundle–
(a) a copy of the appellant’s notice;
(b) a copy of any respondent’s notice;
(c) a copy of any appellant’s or respondent’s skeleton argument;
(d) a copy of the order under appeal;
(e) a copy of the order of the lower court granting or refusing permission to appeal together with a copy of the judge’s reasons, if any, for granting or refusing permission;
(f) a copy of any order allocating the case to a track;
(g) a transcript of the judgment of the lower court or other record of reasons (except in appeals in cases which were allocated to the small claims track and subject to any order of the court).
(2) The following documents should also be considered for inclusion in the appeal bundle but should be included only where relevant to the appeal –
(a) statements of case;
(b) application notices;
(c) other orders made in the case;
(d) a chronology of relevant events;
(e) witness statements made in support of any application made in the appellant’s notice;
(f) other witness statements;
(g) any other documents which any party considers would assist the appeal court.
6.5 Service of the appeal bundle: A copy of the appeal bundle must be served on each respondent –
(a) where permission to appeal was granted by the lower court, at the same time as filing the appeal bundle;
(b) where the appeal court has granted permission to appeal, as soon as practicable after notification and in any event within 14 days of the grant of permission;
(c) where the appeal court directs that the application for permission to appeal is to be heard on the same occasion as the appeal, as soon as practicable and in any event within 14 days after notification of the hearing date.
6.6 Late documents: Any relevant document which is obtained or created after the appeal bundle has been filed (for example a respondent’s notice or a skeleton argument) should be added to the appeal bundle as soon as practicable and, in any event, no less than 7 days before the hearing of the appeal or any application.”