MORE ON BUNDLES: JACKSON ON THE BUNDLE AS AN OBSTACLE COURSE

In a judgment today Jackson L.J. made some trenchant remarks about the quality of the appeal bundle. It illustrates the importance of reading (and complying) with the relevant rules and practice directions.

The appeal bundle should be an aid to the court, not an obstacle course”

THE CASE

The case was  Illife -v- Feltham Construction Ltd [2015] EWCA Civ 715. The appeal related to a summary judgment order in multi-party litigation concerning fire damage. The Court of Appeal allowed the appeal. However Jackson L.J. made some observations about the state of the bundle.

THE BUNDLE

Jackson LJ had a specific section of the appeal on the bundle.

“Part 5. The Court of Appeal bundle
  1. Paragraph 27 of Practice Direction 52C sets out clear rules concerning what should be included and – more importantly – what should be omitted from bundles prepared for the Court of Appeal. In particular, paragraph 27 (1) provides that the appeal bundle “must contain only those documents relevant to the appeal”.
  2. In the last TCC appeal which I heard (a complex case concerning the construction of a road in Gibraltar) the parties were scrupulous in complying with that rule. They thereby saved the court much valuable time. Not so in the present case. Here the parties set about doing precisely the opposite.
  3. The present appeal bundle (ignoring the authorities bundle) contains 2,550 pages. This includes numerous duplicates and irrelevant documents. There are at least two copies of Dr Goudsmit’s report and at least two copies of the JCT contract. The arrangement of the correspondence is, to put it charitably, chaotic. It is certainly not chronological. For example, I managed to track down the architect’s important letter of 12th May 2011 at page 1807. His follow-up letter dated 16th June 2011 is tucked away at page 2148. Mr Dearie’s email of 26th September 2011 (about the gap around the flue) is at page 359. Amongst the jumble of correspondence there are copies of superfluous authorities. The brief chronology furnished by the parties does not contain any page references to aid the hapless judge as he/she struggles to piece together the story of what happened.
  4. The appeal bundle should be an aid to the court, not an obstacle course. The practice direction governing the conduct of appeals is not difficult to understand. It serves a serious purpose. Experienced practitioners should do what it says.
  5. In the present case, as I indicated during argument, whatever the outcome of the appeal no party will be entitled to recover any costs referable to the preparation of the bundle.”

 A BUNDLE OF RELATED POSTS (IN NO PARTICULAR ORDER)

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