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Articles, News | Mon 24th Jul, 2023
Court bundles. If we don’t fear them, we should. The team knows of one eminent silk whose greatest apprehension prior to appearing in the Court of Appeal is not about his (meticulous) case preparation or his (encyclopaedic) legal knowledge, but whether the Court will raise some hitherto unnoticed issue with pagination. Hugh Rimmer recounts some chilling Tales from the Court. And speaking of chilling tales, we hear from our Swedish contacts that following an investigation the Swedish Competition Authority has accepted a commitment from Finnair to disapply its policy of preventing online travel agents from advertising its fares at discounted prices – a policy the KKV regards as ‘abusive’ and anticompetitive. Although the commitment relates only to Finnair flights offered for sale within the Swedish jurisdiction, the development must surely raise questions as to the business practices followed by discount airlines and online travel agents throughout the EU – and indeed in the UK, whose consumer and competition law is closely aligned to that of Europe. Meanwhile, we were interested to read that the High Court has overturned the decision at first instance in Afzal v UK Insurance, with consequences for all practitioners undertaking work involving witnesses giving evidence in a language not their ‘native language’.
Bundles of Joy
If your case reaches trial, one of the key items everyone in the room (virtual or actual) will be looking at and working with is the trial bundle. It may well be the first thing the judge sees. It is central to everyone’s preparation and the smooth running of the trial.
The below cases highlight the tribulations in trials and the frustrations of the bench with bundles that don’t do what they ought. The issues with the bundles might not have been the only issue, but in all these cases it was one that warranted mention and swayed the judges in their decisions.
Ball v Ball & ors (2022)[1]
The litigation arose out of a family’s disputes over transfer and ownership of an industrial estate. Before trial, at the PTR, directions were made which included service of trial bundles and filing of the trial bundles at court by specific dates, failing which the case would be struck out.
The deadline for service of the trial bundles came and went, but the Claimant did not serve bundles on time, and the bundles that were prepared were not CPR compliant. The Claimant made an application for relief from sanctions and an extension of time for serving compliant bundles. The reasons given were IT problems and lack of support staff, as well as miscommunications while trying to prepare them.
HHJ Davis-White considered the 3-stage test under Denton. Under stage 1, the judge considered the breach to be particularly serious. The Claimant’s failure imperilled the trial date. To allow more time to prepare the bundles again would mean adjourning the trial and losing the date.
Considering stage 2, the reason for the breach, HHJ Davis-White was unimpressed. The reasons might “to a limited extent” be good reasons but were ultimately a demonstration that it was “not appropriate and indeed dangerous to leave matters to the last minute and expect everything to run smoothly”.
On the third stage the judge considered all the circumstances. It is fair to point out that there were previous breaches and other relief which the court would have to go on to consider if it was granted in relation to the bundles. The problems with the bundles, and the delay in their preparation, were to some extent a knock-on effect of the earlier breaches. However, the seriousness of the breach in failing to prepare proper bundles and the inevitable need to adjourn the trial that resulted was the final straw. Before even going on to consider the other issues the judge determined that relief should not be granted in relation to the bundles. The claim remained struck out.
Bailey -v- Stonewall Equality Ltd, Garden Court Chambers & others[2]
The claim was one before an employment tribunal. Carriage of preparing the bundle lay with the respondent (as is conventional in employment tribunals). However the approach to the preparation of the bundles and the bundles that were eventually produced found little favour with the tribunal. The bundle was described as “exceptionally difficult to work with” and that it “seemed to have been randomly thrown together”. Among other issues there were multiple sub-indexes to deal with documents left out of the main index, and pagination from previous bundles had not been removed. The preparation had hampered by issues such as the parties using different naming conventions for various documents, which made ordering and collating the documents difficult. There were also disputes about how to include emails -individual emails or whole email threads- and no cohesive approach to dealing with email threads which diverged with more than one reply. The upshot was that email exchanges contained in the bundle could have a reply that was 2000 or 4000 pages apart, with frequent duplication of the same emails or tweets.
This occurred against a background of sometimes intemperate correspondence, including some correspondence from the respondent that the tribunal considered discourteous to the Claimant, who had been “sinned against” rather than “sinning”.
The power to order costs in the employment tribunal is a discretionary one. The circumstances in which these bundles were produced, and the unruly bundles that were ultimately created, led the tribunal to award costs; this in a regime that would usually be non-costs bearing. The respondent was made to pay £20,000 towards the Claimant’s costs, as a contribution towards the additional work caused by the respondent’s approach to the preparation of the bundles.
Koukash v Koukash [2022] EWHC 1001 (Fam)[3]
A final warning about what not to put into bundles that a trial judge will see: without prejudice correspondence and part 36 offers.
In this family case after a failed Financial Dispute Resolution hearing, at which a bundle including without prejudice documentation and offers was used, the matter went to a full contested hearing. Unfortunately the bundles used at the FRD hearing were also used for the final hearing. The judge saw without prejudice documents and offers, and when setting the amount of a lump sum relied on one such without prejudice document as proof that the husband had a sufficient sum available to make that payment. The husband appealed the award because it was based on information that should not have been before the judge.
The judge on appeal had “great sympathy with the judge. He was, in effect, handed a booby-trapped bundle containing a document that should not have been there.”
While it was with “a very heavy heart”, because of the time the litigation had already been going on for and the difficulties it was causing for the families involved, the appeal judge concluded he had no choice but to allow the appeal. Those documents ought not to have been in the bundle, and the trial judge ought never to have seen or relied on them. As a result, the case had to be remitted for a rehearing, with all the associated wasted time and costs that would entail.
The Answer?
A few clear points arise from these cases.
Some of these points may seem obvious, but the regularity with which the courts tackle problematic bundles suggests that they are something which are not always given the time and thought that they need.
About the Author
Hugh Rimmer was called in 2003 and specialises in clinical negligence and high-value, complex personal injury claims. In his clinical negligence practice he is instructed in cases involving a wide range of medical specialities on issues including misdiagnosis and delayed diagnosis, unnecessary/inappropriate treatment, surgical negligence, pharmaceutical negligence and failure to obtain informed consent.
Hugh has extensive experience in cases involving ophthalmic negligence, and is sought after in particular for cases involving informed consent for cosmetic ophthalmic surgery (including laser eye surgery and refractive lens exchange). He is recognised as a leading junior in clinical negligence by the Legal 500 and is an experienced practitioner who provides advice and representation at all stages of litigation.
Bundles of His (Native Language) (one for our cardiologist readers)
Some months ago readers will have been surprised to read of the decision by Her Honour Judge Evans, sitting in Manchester County Court, to refuse to hear evidence from a claimant in a claim for damages for personal injury arising from a road traffic accident in respect of which liability had been admitted on behalf of the defendant. The claimant had served a witness statement in which he set out his case, and was (presumably) looking forward very much to the moment at which he would stand up in court and face cross examination. Alas! His moment never came. Why not? Because before he could do so, the following exchange between the judge and counsel for the claimant took place:
JUDGE: I have a preliminary issue, Mr Boxall: what is your client’s own language?
MR BOXALL: He speaks both English and Urdu, I believe.
JUDGE: That was not the question. What is your client’s own language?
MR BOXALL: Can I take some instructions, ma’am? (After a pause) It is Urdu, your Honour.
JUDGE: What language is his witness statement in?
MR BOXALL: English.
JUDGE: You know what the provisions say in the Practice Direction to Part 32, I imagine. I am considering whether to refuse you permission to rely upon the witness statement, given that it has not been drafted in the witness’s own language and that the statement of truth is not in his own language. Do you want to take some instructions before you make some submissions about that?”
CPR32PD18.1 states (insofar as is relevant):
The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language.
HHJ Evans interpreted this to mean that in the case of this particular claimant his witness statement ought to have been drafted in Urdu, since having been put to his election that was his chosen language, notwithstanding that he spoke both Urdu and English. A bit like the test of which sporting team one might support – it is, as the author has learnt to her cost, not good enough to claim to support both England and Ireland in the Six Nations tournament – one must pick a side. Mr Afzal, having picked Urdu, could not then give evidence in English, even though he spoke the language fluently and had given instructions to his solicitors in English and had given his witness statement and was prepared to give oral testimony without the need for an interpreter.
At trial, counsel for the claimant accepted that there had been a breach of CPR32PD18.1, and counsel for the defendant suggested that he would cross examine Mr Afzal as to his understanding of the matters set out in his witness statement. The judge, however, was having none of it, and refused the claimant permission to rely on his statement altogether or to adjourn so as to allow it to be translated into Urdu:
And so, whilst, if I refuse permission to the claimant to rely upon this statement, it may have the result ultimately of his not being able to pursue his claim against the defendant, that it prejudices him, in my judgment, is outweighed by the importance of securing compliance with this particular Practice Direction for all the reasons I have already set out…
if I were to adjourn the claim that would result in another day of court time being given to this case, at a time when court resources are particularly stretched, and would result in the addition of costs to both sides of the case being adjourned and an order that the claimant or his solicitors pay the defendant’s costs would deal with that point for the defendant, but would not deal with the general need for costs to be kept generally proportionate and at an appropriate level, and not wasted.
Mr Afzal, who presumably would have been able to understand what was happening given his grasp of the language of the court, would (one imagines) have been rather surprised to find his claim dismissed for lack of proof, in circumstances in which liability had been admitted and he had given a statement in one of the languages in which he was fluent.
On appeal Freedman J accepted that ‘it is important that if the witness does not speak English then the witness statement will be in that person’s own language, which must then be translated and the translation filed and verified in accordance with para.23 of PD 32’. However, he observed that that does not mean that it was intended that those who were bilingual, or those who were sufficiently fluent in English to give oral evidence including under cross-examination, should not be able to give their evidence in English. He pointed out that if all multilingual people coming before the courts were forced to give evidence in their ‘mother tongue’, the practical consequences for those people would have the effect of restricting their access to justice. Further, if there were doubts about the proficiency of the claimant as to whether the claimant was sufficiently fluent, then that could have been tested with a view to considering whether the evidence should be excluded. Simply excluding the claimant’s evidence altogether was not the proper course in these circumstances; the judge ought to have allowed the case to proceed, and the claimant to be cross examined about his understanding of the matters set out in his statement. The appeal was therefore allowed and the matter returned for retrial.
Comment
It is too early to draw any definitive conclusions from this and a number of other decisions we have drawn readers’ attention to recently, but it does seem that recently there may have been an outbreak of judicial fairness and an attention to the interests of justice rather than what is often described as ‘the administration of justice’ but seems from the point of view of litigants to amount to the fetishisation of saving costs and court time above doing justice in any given case. It is suggested that in a case of this nature, where a witness is said to be capable of understanding his or her statement (or indeed expert report) and of facing cross examination in the language employed in its preparation, there is no reason not to allow him or her to proceed to give evidence. Indeed, there is no reason to make further enquiries as to his or her native language – we do not, after all, commonly ask witnesses to provide details of the language(s) spoken by their parents, or at their first school, or in their home, or with their family. I may, for all the courts know, choose to speak Gaeilge with my mother, but no one has yet challenged me on the point, and it is difficult to see why a claimant with perfectly good English should be in a worse position than his barrister.
For these reasons it is suggested, and not tentatively, that the decision of Freedman J in Afzal v UK Insurance Limited [2023] EWHC 1730 (KB) must be right both in law and justice.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.
[1] https://www.civillitigationbrief.com/wp-content/uploads/2022/11/Ball-v-Ball-Ors-Approved-Judgment-11.10.2022-V1.pdf
[2] https://allisonbailey.co.uk/wp-content/uploads/2023/07/2202172.20-Costs-Jment.pdf
Call: 1997 Silk: 2023
Call: 2003
