Jackson issues costs penalty for bundle that proved an “obstacle course”

Bundle: full of duplicates and irrelevant documents

Bundle: full of duplicates and irrelevant documents

The bundle prepared for the Court of Appeal should be an aid, “not an obstacle course”, Lord Justice Jackson has said in ruling that no party in a case before him would be entitled to recover the costs of preparing it.

Ruling in an appeal against summary judgment in a construction case, he emphasised paragraph 27 of practice direction 52C, which states the appeal bundle “must contain only those documents relevant to the appeal”.

Jackson LJ – who used to sit in the Technology and Construction Court (TCC) and has made several complaints about the lengths of pleadings – said: “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.

“The present appeal bundle (ignoring the authorities bundle) contains 2,550 pages. This includes numerous duplicates and irrelevant documents… The arrangement of the correspondence is, to put it charitably, chaotic. It is certainly not chronological…

“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.

“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.

“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.”

Jackson LJ also commented on the ongoing debate over whether the TCC protocol should be retained. He said: “It would be quite wrong for the Court of Appeal to venture into this dispute. I do, however, make three comments. First, so long as the protocol is in place, parties must comply with it.

“Secondly, when issues of compliance with the protocol arise, TCC judges look at the substance of the matter rather than the minutiae of the protocol. Thirdly, the court deplores any excessive front loading of costs in order to comply with protocol: see CIP Properties v Galliford Try [2015] EWHC 481 (TCC).”

In the substantive case, Jackson LJ decided, “after some hesitation”, that Mr Justice Stuart-Smith should not have granted summary judgment. But he stressed that “I am certainly not discouraging robust case management or the use of summary judgment under CPR part 24.

“In appropriate cases part 24 provides a valuable mechanism to avoid holding a trial, with all the expenditure of time and costs which that entails. My conclusion is simply that, for a collection of reasons as stated above, this case falls short of satisfying the requirements of CPR 24.2.”

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