It should not be necessary for the court to make express directions as to what should be included in a hearing bundle but failures to collate them properly may force them to, a High Court judge has warned.
Mr Justice Nicklin also said judges on the media and communications list would have to start using their powers, including costs orders, “to control this wasteful expenditure of costs and resources”.
He made the comments after a preliminary ruling on meaning in a libel case against Reuters, complaining about a 200-page bundle.
“When determining the natural and ordinary meaning of a publication, no evidence is admissible beyond the publication itself. This is a fundamental principle, but it appears that it needs again to be repeated,” he said.
This should mean that assembling a hearing bundle was “simplicity itself” – the bundle should contain the publication complained of, the statements of case, and relevant orders of the court.
“Occasionally, where a defence has not been served, the defendant sets out his/her contention as to the natural and ordinary meaning of the publication in a letter. That letter should be included, but the court is very unlikely to be assisted by the inclusion of inter partes correspondence which does little more than repeat, in solicitors’ letters, submissions to be made to the court.”
The bundle also included correspondence relating to costs that had already been resolved and “absurdly… a draft of a joint letter to the court the only substantive change to which was the correction of the full name of the claimants’ solicitors”.
None of this was “remotely relevant” to the issue before the court, Nicklin J said, and should not have been included. He had looked at or been referred to no more than 15-20% of the bundle.
He said: “It should not be necessary for the court to have to start making express directions as to what should be included in a hearing bundle.
“The court should be able to expect experienced litigation solicitors to make that assessment for themselves.
“A 200-page hearing bundle over the natural and ordinary meaning of an article that occupies the first 10 pages of the bundle is disproportionate and wasteful. If bundles like this continue to be lodged, judges of the media & communication list will have to start using powers to control this wasteful expenditure of costs and resources, including making orders disallowing parties’ costs.
“A good rule of thumb is to ask, is the court likely to be referred to or want to see this document in the course of the party’s submissions.”