Judge fires costs warning in face of “documentary carpet bombing”

Papers: mostly unread in court

Papers: mostly unread in court

A High Court judge has hit out at the “documentary carpet bombing” he faced in a negligence claim before him and warned litigants of the costs consequences that such behaviour can trigger.

Mr Justice Turner said that in “an otherwise meticulously prepared claim, the approach to the preparation of the trial bundle has been egregiously over-inclusive”.

Griffiths v The Secretary of State for Health [2015] EWHC 1264 (QB) concerned whether a paramedic’s admitted failure to immobilise the claimant’s neck after an accident was responsible for at least part of his residual disability.

In a “passing observation” before finding that it had, Turner J recounted: “No fewer than 17 lever arch files were deposited with the court. They contained well over 5,000 pages of documentary material. About a dozen of these lever arch files remained unopened throughout the trial and reference to the contents of three others was confined to just a few pages. It would be no exaggeration to say that about 90% of the documentation was entirely redundant.

“With disarming frankness, the claimant’s written opening provides at paragraph 10: ‘There are seventeen trial bundles and a core bundle and application bundle. Files four to seventeen contain largely irrelevant documents…’.”

Turner J referred to the satirical Sedley’s Laws of Documents – written by the former appeal court judge – which suggests that “at least 80% of the documents shall be irrelevant. Counsel shall refer in court to no more than 10% of the documents”. By contrast, practice direction 39A of the CPR 3.2 identifies 10 limited categories of documents to be included in the trial bundle together with ‘any other necessary documents’.

He said: “In this case, the trial bundles entirely fulfilled the expectations of parody but signally failed to comply with the practice direction. Of course, the court should not be too ready to criticise solicitors who may understandably err a little on the side of generosity when deciding which documents to include but this pragmatic indulgence does not excuse wholesale profligacy.

“CPR 1.3 imposes a duty upon the parties to help the court to further the overriding objective. This duty is not fulfilled by documentary carpet bombing. Those responsible for putting trial bundles together should bear in mind that if they are in breach of the practice direction then, in appropriate cases, adverse costs consequences may flow.”

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