YET MORE ON BUNDLES : BREACH OF ORDER MADE ON “MITCHELL” GROUNDS UPHELD ON “DENTON” GROUNDS

The case of Patel -v- Mussa [2015] EWCA Civ 434 is, in essence, another sorry story about bundles.  It is also an example of the Court of Appeal upholding a case management decision made by a judge who applied “Mitchell” principles. The same decision would have been reached applying “Denton” principles.

THE CASE

The claimant sought to appeal an order of the District Judge. Directions were made that the claimant file a skeleton argument by the 4th April 2014 and that a “bundle of documents for use in the appeal, paginated and indexed [be lodged] not less than three clear days before the hearing of the appeal.”

KEY POINTS

  • Bundles and skeleton arguments were served very late and not in accordance with a court order. The bundle was not adequate.
  • The Court of Appeal upheld the decision of the Circuit Judge to strike out the appeal without hearing it on its merits because of these failures.

COMPLIANCE WITH THESE DIRECTIONS

  • The skeleton argument was not lodged on the 4th April but was emailed to the court at 7.07 am on the morning of the hearing.
  • On the 9th May the claimant’s solicitors faxed 36 pages extracted from the three bundles that had been before the circuit judge. Court staff were assured that the bundle would be lodged “that afternoon”.
  • In fact a hard copy bundle (containing the 36 pages) was sent electronically on the 9th May with a request that they be placed before the judge immediately “for his convenience”. A second hard copy was sent that morning.

THE MORNING OF THE HEARING

  1. On 12th May 2014 two matters were listed for hearing before Judge Ellis: Mr. Patel’s application for permission to appeal and an unrelated application for summary judgment. Mr. Patel’s application was estimated to last one hour and the application for summary judgment the rest of the day. Although Mr. Patel’s application was second in the list, the judge, unsurprisingly, decided to take it first. When the application was called on the judge complained that he had received the papers only ten minutes earlier and had not had time to read the bundle, much less to refer to the three lever-arch files which constituted the main bundle. He said that rather than adjourn the matter to another day he would apply the Mitchell principles. The failure to comply with his earlier directions was not trivial and no reasonable excuse for it had been put forward. He therefore dismissed the application.

The judge’s order

  1. On 13th May Judge Ellis completed Form N460 in which he gave the reasons for his decision. In the box with the side heading “Result of hearing or trial” he wrote:

“Application dismissed. In breach of the directions order made and the CPR the appellant filed the skeleton argument and hearing bundle at court 10 minutes before the hearing. The breaches were not trivial – Mitchell applied.”

  1. In the box headed “Brief reasons for decision to allow or refuse appeal” he wrote:

“Non-compliance not trivial. No good reason for the default. In light of Mitchell an appeal would have no reasonable prospect of success.”

THE HEARING AT THE COURT OF APPEAL

The Court of Appeal considered whether it had a “residual discretion” to hear the appeal.  However the Court of Appeal held that it was not hearing an appeal on the merits.  Although the order made below said that appeal was dismissed there had not been any substantive hearing on the merits.

This is not a case in which the application itself was determined in an arbitrary manner or in a way that fundamentally invalidated the decision, so that it could be said not to constitute a decision at all. The judge’s order was, in effect, a case management order and as such was independent of the application for permission to appeal. As a case management order it was amenable to appeal (subject to permission) in the same way as any other case management order. Accordingly, whatever may be said about the merits of the judge’s decision, I do not think it is one that engages the court’s residual jurisdiction. That much, indeed, was recognised by Mr. Patel in his grounds of appeal, in which he sought to challenge the Mitchell principles as a whole and Judge Ellis’s application of them in this case in particular.

  1. The only evidence before us of what occurred at the hearing is what appears in the Form N460, to which I have already referred. In my view it is clear (as indeed was substantially confirmed by Mr. Buckhaven in the course of argument) that the judge was satisfied that, as a result of what he considered to have been a signal failure on the part of those representing Mr. Patel to comply with the directions for the hearing, the matter could continue only if the hearing were adjourned and that, in the absence of any reasonable explanation, that failure should be visited with a sanction in the form of the dismissal of the application. That seems to me to be the only conclusion that can be drawn from his reference to the case of Mitchell(Mitchell v News Group Newspapers [2013] EWCA Civ 1537, [2014] 1 W.L.R. 795). In formal terms his intention might have been better reflected if the order had provided that the application for permission be struck out, but in practical terms it came to the same thing. The judge did not purport to deal with the application on the merits; he simply disposed of it peremptorily by way of a sanction.

The Court of Appeal  held that appealing a decision in these circumstances the right to bring judicial review proceedings was the only appropriate step. The fact that judicial review proceedings could be brought was sufficient to satisfy any article 6 issue.

THE APPEAL IN RELATION TO THE SANCTIONS ISSUE

The Court of Appeal then considered the issues in relation to the sanction imposed by the judge.

  1. The directions which Judge Ellis gave on 18th February 2014 were straightforward and not difficult to comply with. Although the order was made on the court’s own initiative, no one has suggested that they were in any respect inappropriate. They were intended to ensure that the all the papers needed for the hearing were made available to the judge in time to enable him to prepare properly for the hearing, but the late delivery of both the skeleton argument and the working file made that all but impossible. Contrary to popular belief, judges often do give up some of their free time to work at week-ends, but the profession is not entitled to assume that they will do so or that they have no other more pressing commitments, whether professional or private. In the present case it was wholly unsatisfactory for a bundle of papers which should have been served three clear days in advance to be sent to the court electronically during the afternoon of the last working day before the hearing. It was, if possible, even more unsatisfactory for a skeleton argument, which should have been filed about five weeks earlier, to be sent to the court electronically on the very morning of the hearing. In my view it was not reasonable to expect the judge to have read and considered those papers in the short time available to him before the day’s sittings began and I am not surprised that he took the view that it would be necessary to adjourn the matter to enable him to read and consider them. That would have caused further delay and almost certainly a degree of disruption to the court’s business.
  2. The judge applied the Mitchell principles, by which, as I understand it, he meant a rigorous approach to compliance with the court’s directions backed up by stringent sanctions in order to promote a more orderly and efficient approach to litigation. In Mitchell itself the court was concerned with an application under CPR rule 3.9 for relief from sanctions. In paragraphs 40-41 of its judgment the court suggested that a judge considering such an application should begin by considering the nature of the breach. If it could not be described as trivial (for example, because it amounted to a failure of form rather than substance, or involved the narrow missing of a deadline), it would be for the applicant to persuade the court to grant relief. In that context one important question would be whether the breach had occurred for some good reason, but the court was at pains to emphasise that merely overlooking a deadline would not ordinarily constitute a good reason. Although the case itself was concerned with an application for relief from sanctions, the principles to which it sought to give effect were of more general application. In my view the judge was right to treat it as endorsing a more rigorous approach to compliance with the rules of procedure and the directions of the courts in relation to the conduct of litigation. The Mitchell principles were restated and refined in Denton v T.H. White Ltd [2014] EWCA Civ 906, [2014] 1 W.L.R. 3926,although with rather greater emphasis on the need to evaluate all the circumstances of the case in order to dispose of the application justly.
  3. In my view the judge was entitled to regard the failures to comply with his earlier directions as far from trivial. I would describe each of them as serious. The filing well in advance of the hearing of a skeleton argument and the production of a bundle of documents for use at the hearing were both essential if the judge was to have an adequate opportunity to prepare. The fact that three lever-arch files of documents had been lodged with the court in connection with the application before the district judge is nothing to the point. If only a small selection of documents were required for the hearing, it was essential that they be identified and copies provided for the judge in some convenient form. In the event, neither the skeleton argument nor the bundle was provided until just before the hearing.
  4. No good reason was put forward for the failure to comply with the judge’s directions. The solicitors candidly admitted that the failure to lodge the bundle of documents in time had been the result of an oversight. Mr. Buckhaven submitted that the judge had had ample time to consider the papers between Friday afternoon and Monday morning, but, as I have already pointed out, parties are not entitled to assume that judges have no other calls on their time at week-ends. In any event, to provide a bundle of documents without a skeleton argument during the afternoon of the day before the hearing does not make up for a failure to lodge it three days earlier as required.
  5. In the circumstances the judge was, in my view, entitled to regard the failure to comply with his directions as serious and unjustified and to impose a sanction of some kind. Whether this court would have taken the same course is not the point. The only question we have to consider is whether in dismissing the application Judge Ellis took a course that was not open to him in the exercise of his discretion. Mr. Buckhaven submitted that he could have put the matter back until later in the day, but the other case in the judge’s list was estimated to require the rest of the day, so I do not think he can be criticised for not taking that course. In my view the course he took was severe, but in all the circumstances I am not persuaded that was one which he could not properly take. I would therefore dismiss the appeal.

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