Scribes West Ltd v Anstalt & Anor (No 1)

Introductory

We heard argument this morning on a jurisdictional issue in connection with this appeal, and we will deliver judgment on that issue in due course. In the meantime this case provides an opportunity to give notice of and explain the very substantial changes that have been made to the Practice Direction to CPR Part 52. These changes will come into effect tomorrow, 30^th June 2004. The full text of the revised Practice Direction has been published on the website of the Department of Constitutional Affairs (www.dca.gov.uk). It will also be available in the second edition of the Manual of Civil Appeals, which is to be published shortly. Every judge exercising civil jurisdiction and everyone who practises or appears in an appeal court will need to be aware of the new requirements as soon as they take effect tomorrow. I am therefore taking this opportunity to explain the most important of the changes that have been made. I hope that this judgment will be circulated widely and that it will receive widespread publicity.

Grounds of Appeal

As is well known, an appeal court will only allow an appeal where the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court (CPR 52.11(3)). The original Practice Direction (“PD”) to Part 52 provided that the grounds of appeal should set out clearly the reasons why CPR 52.11(3)(a) or (b) were said to apply. This requirement is repeated in para 3.2(1) of the revised PD, but it also contains in para 3.2(2) a new requirement that the grounds of appeal should –

“specify, in respect of each ground, whether the ground raises an appeal on a point of law or is an appeal against a finding of fact.”

This distinction is important when the jurisdiction of the relevant appeal court is limited to an appeal on a point of law. Guidance on the distinction between fact and law will be found in standard textbooks and in the second edition of the Civil Appeals Manual, due to be published shortly.

The request for reconsideration of a decision on permission to appeal

Para 4.14A contains an entirely new requirement in those cases where an appellant, who is represented, makes a request for a decision to be reconsidered at an oral hearing. It obliges the appellant’s advocate, at least four days before the hearing, to inform the court and the respondent in a brief written statement of the points which he proposes to raise at the hearing; to set out his reasons why permission should be granted notwithstanding the reasons given for the refusal of permission; and to confirm, where applicable, that the requirements of paragraph 4.17 of the PD (which relates to appellants funded by the Legal Service Commission) have been complied with.

Notice to respondent of the hearing by an appeal court of an application for permission to appeal

In Jolly v Jay [2002] EWCA Civ 277 at [41] this court invited the appropriate authorities to consider whether the practice adopted by certain appeal courts of notifying respondents of the time fixed for the hearing of an application for permission to appeal should be made uniform, because it was evident that different appeal courts followed different practices. Paras 4.15 and 4.16 of the revised PD represent the response to that invitation:

“4.15

Notice of a permission hearing will be given to the respondent but he is not required to attend unless the court requests him to do so.

4.16

If the court requests the respondent’s attendance at the permission hearing, the appellant must supply the respondent with a copy of the appeal bundle (see paragraph 5.6A) within 7 days of being notified of the request, or such other period as the court may direct. The costs of providing that bundle shall be borne by the appellant initially, but will form part of the costs of the permission application.”

No change has been made to PD paras 4.22 - 4.24, which contain the regime for deciding whether a respondent is to be allowed any costs in connection with his involvement in such an application.

The change is designed to achieve consistency of practice throughout the country. There is a consequential revision to PD para 4.16, which now provides that an appellant will only be bound to bear the initial costs of providing a copy of the appeal bundle in those cases in which the court requests the respondent’s attendance at the permission hearing.

The appeal bundle

Major changes have now been made to the arrangements for preparing bundles for an appeal court. Some of these changes have been made in respect of all appeal courts, and there are also further changes which apply only to practice in the Court of Appeal. Experience showed that the former arrangements led to a proliferation of bundles (often anonymous in appearance) at different stages of the appeal process, together with widespread ignorance of provisions (such as para 5.8 of the original PD) which were designed to assist the court but did not succeed in their object.

Under the arrangements in the revised PD, para 5.6 now provides a concise statement of the relatively few documents, as distinct from the appeal bundle, which must be filed in connection with every appeal (except on an appeal in the county court or High Court which relates to a claim allocated to the small claims track (para 5.6(1)). Para 5.6(2) of the revised PD mirrors paras 5.6(1) -(6) of the original PD, although practitioners must take note of some slight changes in the text. Two additional copies of the appellant’s notice (as opposed to one) are now required for the appeal court (see para 5.6(2)(a) of the revised PD).

These documents will be lodged with the papers in the court file. Para 5.6A of the revised PD introduces the new concept of an “appeal bundle”. This is to be contrasted with the phrase “a bundle of documents in support of the appeal” which appeared in para 5.6(7) of the original PD. Practitioners must carefully check the list contained in the new para 5.6A. It mirrors the list which appeared in the original para 5.6(7)(a) - (k), but there are some differences, and the new arrangements are designed to make things simpler to follow.

For example, instead of the quite complicated opening text in the original para 5.6(7), which was designed to limit the cost of preparing documents for an appeal but was regularly ignored by inexperienced practitioners and many litigants in person, the new text is designed to make the same point clearly and concisely. At the end of a list of the formal documents which must be included in the appeal bundle (see para 5.6A(1)(a)-(k)), para 5.6A(1)(l) requires the inclusion of:

“any other documents which the appellant reasonably considers necessary to enable the appeal court to reach its decision on the hearing of the application of appeal.” (Emphasis added).

The point is now reinforced by para 5.6A(2):

“All documents that are extraneous to the issues to be considered on the application or the appeal must be excluded. The appeal bundle may include affidavits, witness statements, summaries, experts’ reports and exhibits but only where these are directly relevant to the subject-matter of the appeal.” (Emphasis added)

And by para 5.6A(3)

“Where the appellant is represented, the appeal bundle must contain a certificate signed by his solicitor, counsel or other representative to the effect that he has read and understood para (2) above and that the composition of the appeal bundle complies with it.”

This certificate will act as an important reassurance to the court (and to the lay litigants who may have to pay for the appeal process) that the bad old days of unthinkingly copying the trial bundle are over, and that only those documents that are directly relevant to the subject-matter of the appeal will have been included in an appeal bundle. If a party wishes to bring the trial bundle to the appeal court just in case there is any document in it which turns out to be important, then of course he may do so, but the contents of the appeal bundle must be limited, when it is first prepared, to the documents identified in para 5.6A(1).

Para 5.7 of the PD, which places a duty on an appellant to indicate which documents contained in the lists in paras 5.6 and 5.6A have not yet been filed, and the reasons why they are not currently available, now contains a new requirement:

“The appellant must then provide a reasonable estimate of when the missing document or documents can be filed and file them as soon as reasonably possible.”

Para 5.8 of the original PD (which represented an effort to require the production of a core bundle in heavy appeals that was consistently disregarded) has now disappeared. Instead there is a new requirement for a core bundle in the Court of Appeal to which I will refer in para 20 below.

It may be helpful at this juncture if I also refer to para 15.4 of the revised Practice Direction. This provides for the first time a clear specification for the preparation of bundles in the Court of Appeal. Its headings speak for themselves:

(1)

Rejection of bundles

(2)

Avoidance of duplication

(3)

Pagination

(4)

Format and presentation

(5)

Binding

(6)

Indices and Labels

(7)

Identification

(8)

Staples etc

(9)

Statements of case

(10)

New documents

(11)

Inter-solicitor correspondence

(12)

Sanctions for non-compliance.

The importance which the judges of the Court of Appeal attach to the introduction of a clear standardised regime which everyone can understand and follow can be gleaned from the first and last item on this list:

“(1)

Rejection of bundles. Where documents are copied unnecessarily or bundled incompletely, costs may be disallowed. Where the provisions of this Practice Direction as to the preparation or delivery of bundles are not followed the bundle may be rejected by the court or be made the subject of a special costs order.

……

(12)

Sanctions for non-compliance. If the appellant fails to comply with the requirements as to the provision of bundles of documents, the application or appeal will be referred for consideration to be given as to why it should not be dismissed for failure to so comply.”

Compliance with these requirements will mean that every bundle in the Court of Appeal will be readily identifiable both on its spine and on its front cover (PD, para 15.4(7)). Experience has shown that if files of different colours are used in heavy cases for different classes of bundles (documents, transcripts, authorities etc) this makes it much easier to use them in court, but this is not an obligatory requirement.

Para 6.3A of the revised PD is new. It provides:

“6.3A (1) Where the appeal court grants permission to appeal, the appellant must add the following documents to the appeal bundle –

(a)

the respondent’s notice and skeleton argument (if any);

(b)

those parts of the transcripts of evidence which are directly relevant to any question at issue on the appeal;

(c)

the order granting permission to appeal and, where permission to appeal was granted at an oral hearing, the transcript (or note) of any judgment which was given; and

(d)

any document which the appellant and respondent have agreed to add to the appeal bundle in accordance with paragraph 7.11.

(2) Where permission to appeal has been refused on a particular issue, the appellant must remove from he appeal bundle all documents that are relevant only to that issue.”

This is linked with the new provisions which appear in paras 7.11 and 7.12 of the revised PD:

“7.11

If the respondent wishes to rely on any documents which he reasonably considers necessary to enable the appeal court to reach its decision on the appeal in addition to those filed by the appellant, he must make every effort to agree amendments to the appeal bundle with the appellant.

7.12

(1) If the representatives for the parties are unable to reach agreement, the respondent may prepare a supplemental bundle.

(2)

If the respondent prepares a supplemental bundle he must file it, together with the requisite number of copies for the appeal court, at the appeal court

(a)

with the respondent’s notice; or

(b)

if a respondent’s notice is not filed, within 21 days after he is served with the appeal bundle.”

It will be seen that the respondent is also obliged to identify only those additional documents which he reasonably considers necessary to enable the appeal court to reach its decision on the appeal. Instead of filing a separate respondent’s bundle in the first instance, he is now obliged to make every effort to agree amendments to the appeal bundle with the appellant. The emphasis is on co-operation: it is only where agreement is not possible that a respondent’s supplemental bundle will be permissible (para 7.12(1)).

The core bundle in the Court of Appeal

In the Court of Appeal, the occasion on which a core bundle has to be produced in a heavy appeal has now been moved, so that the parties’ solicitors will be able to attend to this at the same time as they are agreeing any additions to the appeal bundle. Paras 15.2 and 15.3 of the revised PD are an expanded version of para 15.11A of the original PD (as amended). A core bundle must now be prepared, agreed and filed by the appellant’s solicitor within 28 days of receipt of the order giving permission to appeal (with a different timetable where the lower court granted permission, or where permission is not required (paras 15.2. and 15.3(1)). These two rules are only applicable where the appeal bundle comprises more than 500 pages, exclusive of transcripts (para 15.2). The core bundle must contain the documents which are central to the appeal and must not exceed 150 pages (para 15.3(2)).

Skeleton arguments

Changes have been made to the regime for skeleton arguments in an appeal court, and the opportunity has also been taken to insert the relevant requirements of the Practice Direction (Court of Appeal: Citation of Authorities) [2001] 1 WLR 1001 (“the 2001 Practice Direction”) into this PD in the hope that they will now be scrupulously observed.

Para 5.10, which governs the contents of all skeleton arguments in all appeal courts, has therefore been expanded to include the requirements of that Practice Direction. Its contents must be carefully studied by everyone who prepares a skeleton argument in connection with an appeal. No additional requirements have been added over and above those contained in the original para 5.10 (supplemented by the 2001 Practice Direction), but the need to take the requirements of the revised PD very seriously (both as to content and as to time for filing) is underscored by para 5.10(6). This is entirely new, and it provides:

“(6)

The cost of preparing a skeleton argument which –

(a)

does not comply with the requirements set out in this paragraph; or

(b)

was not filed within the time limits provided by this Practice Direction (or any further time granted by the court),

will not be allowed on assessment except to the extent that the court otherwise directs.”

No changes have been made to para 5.9, which makes provision for the appellant’s skeleton argument. A more relaxed regime has now been provided in relation to the respondent’s skeleton argument in all those cases in which the respondent does not want the appeal court to vary the order the lower court in any way or to uphold the order of the lower court for different or additional reasons. If a respondent does not file a respondent’s notice for one of these reasons, but simply wants the appeal court to uphold the order of the lower court for the reasons given by the lower court, he may now postpone serving his skeleton argument provided that it is served at least seven days before the appeal hearing (revised PD, para 7.7(2)).

Para 7.6 retains the obligation for a respondent to file a skeleton argument for the appeal court in all cases where he proposes to address arguments to the court (except in connection with small claims appeals in appeal courts below the level of the Court of Appeal: see para 7.7A). Practitioners should be aware, in this context, of the fact that if an appeal in the Court of Appeal is allocated to the short warned list, they will receive a letter from the Civil Appeals Office alerting them to the need to file a respondent’s skeleton argument very soon (if it has not been already filed), since appeals may be drawn from that list for hearing at very short notice.

Experience has shown that new skeleton arguments have been trickling in during the days immediately before the hearing of an appeal, sometimes because a new advocate has been instructed, sometimes because the law has moved on, or because there is a need to address a point raised in an opponent’s skeleton. Often these skeleton arguments have arrived unannounced after the judges have completed their reading for the appeal.

In the Court of Appeal there will now be a much clearer timetable for late skeletons. Para 15.6 of the revised PD requires a respondent to inform the Civil Appeals Office and the appellant in writing within a specified period whether he proposes to file a respondent’s notice or proposes to rely on the reasons given by the lower court for its decision. This will remove a number of the uncertainties which caused a good deal of difficulty in practice (see my judgment in Philosophy Inc v Ferretti Studios SRL [2002] EWCA Civ 921).

Para 15.11A then prescribes the timetable for supplementary skeleton arguments in the Court of Appeal. The appellant must file any such skeleton at least 14 days before the hearing (para 15.11A(1)), and the respondent must file any such skeleton at least 7 days before the hearing. Para 15.11A(4) provides:

“At the hearing the court may refuse to hear argument from a party not contained in a skeleton argument filed within the relevant time limit set out in this paragraph.”

Bundles of authorities in the Court of Appeal

Para 15.11 of the original PD, which required the appellant’s advocate to file an agreed bundle of not more than 10 authorities 28 days before the hearing of an appeal, was completely ignored in practice. Bundles of authorities were lodged in dribs and drabs right up to the day of the appeal, and often on the morning of the appeal. As a temporary mitigating measure the judges of the court agreed to reduce this 28 day rule informally to a seven-day rule, and those practitioners who read my judgment on Harvey Shopfitters Ltd v ADI Ltd [2003] EWCA Civ 1757 at [19] – [22]; [2004] 2 All ER 982 have now been diligently and helpfully complying with the new regime.

This regime is now formalised in para 15.11 of the revised PD which deserves to be quoted in full:

“15.11

(1) Once the parties have been notified of the date fixed for the hearing, the appellant’s advocate must, after consultation with his opponent, file a bundle containing photocopies of the authorities upon which each side will rely at the hearing.

(2)

The bundle of authorities should, in general –

(a)

have the relevant passages of the authorities marked;

(b)

not include authorities for propositions not in dispute; and

(c)

not contain more than 10 authorities unless the scale of the appeal warrants more extensive citation.

(3)

The bundle of authorities must be filed –

(a)

at least 7 days before the hearing; or

(b)

where the period of notice of the hearing is less than 7 days, immediately.

(4)

If, through some oversight, a party intends, during the hearing, to refer to other authorities the parties may agree a second agreed bundle. The appellant’s advocate must file this bundle at least 48 hours before the hearing commences.

(5)

A bundle of authorities must bear a certification by the advocates responsible for arguing the case that the requirements of sub-paragraphs (3) to (5) of paragraph 5.10 have been complied with in respect of each authority included.”

If an appeal is listed for hearing at very short notice from the short warned list, the parties must do their best to provide an agreed bundle of authorities as rapidly as possible.

Para 15.11(5) contains a reference back to the obligations which are set out in the 2001 Practice Direction. but have hitherto been ignored by most practitioners on a routine basis.

The papers for the Court of Appeal

It will have become evident that the judges of the Court of Appeal attach great importance to the need for all the papers for an appeal to be filed at least seven days before the hearing. Except in relation to very heavy cases, the judges are likely to do their own pre-reading for an appeal on any day within that seven-day period, and they cannot do this usefully if future papers are likely to meander in to the Civil Appeals Office after they have completed their pre-reading. This is why all the skeleton arguments must now be filed at least seven days before the hearing (see para 27 above) and the agreed bundle(s) of authorities must be lodged at least seven days before the hearing (see para 29 above). The great importance which the judges will attach to strict compliance with this timetable is underscored by para 15.11B (entitled “Papers for the appeal hearing”) which provides:

“(1)

All the documents which are needed for the appeal hearing must be filed at least 7 days before the hearing. Where a document has not been filed 10 days before the hearing a reminder will be sent by the Civil Appeals Office.

(2)

Any party who fails to comply with the provisions of paragraph (1) may be required to attend before the Presiding Lord Justice to seek permission to proceed with, or to oppose, the appeal.”

Practitioners who receive a summons to attend before a presiding lord justice during this final week would do well to ensure that all their documents have been filed before the encounter takes place. This rule will mean what it says.

A number of changes have been made to the section of the PD which deals with Court of Appeal practice. Most of them are concerned either to bring together in one place a number of different requirements of the Civil Appeals Office which were contained in the Practice Note (Court of Appeal: Listing) [2001] 1 WLR 479 (see paras 15.9 and 15.9A), or to include within the PD the new regime for handing down reserved judgments which is set out in the Practice Note (Court of Appeal: Handed Down Judgments) [2002] 1 WLR 344) (see paras 15.12-15.21). It should be noted that para 15.19 now enables the court to deal with an application for leave to appeal to the House of Lords on the basis of written submission of its own motion without the need for all parties to agree on the use of this convenient procedure.

I agree.

I also agree.