UNNECESSARY MATERIAL, DUPLICATION AND INFORMATION OVERLOAD: ANOTHER JUDGE’S LAMENT

The observations of Mr Justice Kerr at the end of his judgment in Kimmance -v- General Medical Council [2016] EWHC 1808 (Admin) contains some familiar themes in relation to the preparation of cases: bundles, citations and skeletons.

“The parties should not lodge thousands of pages of documents to cater for a chance of one in a thousand that the judge might ask to see one or two of them. They should work out what they want the judge to see, and produce that”

THE CASE

The judge was considering an application by the claimant against an order of the General Medical Council. Having completed the judgment some general comments in relation to preparation of this kind of appeal.

THE JUDGMENT
  1. I wish to add a few words about appeals of this kind. The way in which they are now routinely presented is wasteful. In this jurisdiction, we have become overburdened with citation of cases and production of unnecessary documents and bundles. I say this not in any way to criticise counsel or solicitors in this case. We are all, judges included, responsible for and part of the legal culture which has allowed this to happen.
  2. It is a disservice both to the medical and legal professions that legal proceedings, such as this appeal, are prepared in a way in which there is included a large amount of unnecessary material, duplication and “information overload”. Worse, it can distract advisers from what is important, such as, in particular, the dangers of not attending a disciplinary hearing.
  3. We are getting many cases in which that has happened. It so happens this is another of them. I fear that in many cases registered professionals are not made fully aware of the dangers of not attending. In a regulatory jurisdiction, where issues of insight and remediation are very important, and where the conduct complained of is clearly very serious, non attendance of the hearing can come close to professional suicide.
  4. This case involved a few short points, and the only documents needed were a tiny fraction of the record of proceedings, not the full record that I was given, but not asked to read. Pages 13 to 973 inclusive of the bundle were the documents from the disciplinary proceedings. I was asked at the hearing to three or four of those pages.
  5. The parties should not lodge thousands of pages of documents to cater for a chance of one in a thousand that the judge might ask to see one or two of them. They should work out what they want the judge to see, and produce that. I had 47 pages of skeletons, 500 pages of authorities, including the whole of Porter v Magill (at pages 71 to 225), the whole of Meadow v GMC (pages 226 to 303).
  6. The proliferation of legal databases means that nearly every case is available. There are hundreds of GMC and similar appeals. Counsel often feel obliged to cite too many of them. I am afraid that some of the judges also feel obliged to cite more than necessary. I have probably been guilty of this myself. Yet, for the experienced, mainly High Court judges who hear the appeals the principles are familiar.
  7. In the future, you do not need to cite Rashid and all those other familiar cases. You do not need to refer to CPR 52.11. You do not need to remind the court that it should defer to the specialist expertise of the tribunal below to the extent that the circumstances warrant. You do not need to cite cases that create no new principle, but merely illustrate existing ones.
  8. You do not need authority for the proposition that factual determinations that turn on the assessment of the credibility of witnesses are virtually unassailable, a proposition that I was treated to in this case, even though no oral evidence was heard. Skeletons should be, if I may respectfully say so, short and to the point, and I hope in the future we will start to look at the merging of skeletons and pleadings, and an enforceable prohibition against the inclusion of unnecessary material.
  9. I make no criticism, however, of the parties or their lawyers in this case. I am grateful to both counsel for their considerable assistance. For the reasons I have given, the appeal is dismissed.

 

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