Practice Note: Harvey Shopfitters Limited V ADI Limited: March 2004

Lord Justice Brooke in the Judgment in the recent case of Harvey Shopfitters Limited v Adi Limited [2003] EWCA Civ 1757 stated that an increasing number of members of the bar appeared to be unfamiliar with the requirements of the Practice Direction to CPR Part 52.

Brooke LJ said that, with the authority of Lord Phillips of Worth Matravers MR, he wished to make some comments on failures to comply with the relevant practice and procedures set out in CPR Pt 52 and its Practice Direction. Below are the relevant parts of Brooke LJs Judgment.

"There is an evident need to draw attention to four aspects of the Practice Direction where ignorance or deliberate disobedience are making things unnecessarily difficult for the court and unnecessarily expensive for the lay parties who have to pay the lawyers bills:

(i) The bundle of documents in support of the appeal (paras 5.6,5.7 and 5.8)

"Those who are responsible in solicitors firms for litigation in the Court of Appeal must make it their business to ensure that those members of their staff who are concerned with the preparation of papers for the Court of Appeal are familiar with the requirements of all three of these paragraphs. The Appeals Practice Direction has been drafted so as to be appropriate for appeals at all levels of the judicial system.

Paragraph 5.6 of the Appeals Practice Direction sets out a checklist of the documents that need to be filed with the appellants notice which will in due course go before the judge who considers whether or not to grant permission to appeal. There is a list of the documents required for the bundle at Paragraph 5.6(7) of the Appeals PD and paragraph 5.7 of the Appeals PD makes it clear that if documents are not yet ready, the court should be told why they are not ready. It is paragraph 5.8 of the Appeals PD which is so widely ignored. It reads:

"Where bundles comprise more than 150 pages excluding transcripts of judgment and other transcripts of the proceedings in the lower court only those documents which the court may reasonably be expected to pre-read should be included. A full set of documents should then be brought to the hearing for reference."

"…..all that those solicitors were required to lodge, and all that they were permitted to lodge, was a bundle of the documents which the court might reasonably be expected to pre-read. This will provide the judge who is hearing and considering an application the opportunity to study the most important documents before the application is heard or considered. If he needs more, he can always ask for them."

(ii) Core bundles (para 15.11A)

"….paragraph 15.11A of the Appeals is required reading for all who practise in this court. It reads:

"Where the total number of pages to be put before the court in a full appeal exceeds 750 pages excluding transcripts and copied authorities, the parties must file and serve a full bundle of essential documents not exceeding 150 pages."

This provision was added by amendment to the Appeals Practice Direction but it is so critically important to the work of the court that it must be scrupulously observed. When judges are pre-reading, they do not wish or need to have 2,000 pieces of paper by their side. They need to have the central documents which they must be familiar with by the time the appeal starts.

In order to achieve its purpose the core bundle must at the very latest be filed seven days before the hearing starts. Ideally, it should be prepared when the bundle of authorities are prepared for the court. It may be that this time limit will be reconsidered when the Appeals Practice Direction is reconsidered."

(iii) Bundle of authorities (paragraph 15.11 of the Appeals PD)

"Paragraph 15.11 of the Appeals PD reads:

"Once the parties have been notified of the date fixed for hearing the appellants advocate shall file, after consulting his opponent, for the purpose of pre-reading by the court, one bundle containing photocopies of the principal authorities upon which each side will rely at the hearing, with the relevant passages marked. There will in general be no need to include authorities for propositions not in dispute. This bundle should be made available 28 days before the hearing, unless the period of notice of the hearing is less than 28 days in which case the bundle should be filed immediately. Such bundles should not normally contain more than 10 authorities. If any party intends, during the hearing to refer to other authorities they may be included in a second agreed bundle to be filed by the parties at the hearing. Alternatively, and in place of the second bundle only, a list of authorities and text may be delivered to the office of the Head Usher of the Court of Appeal no later than 5.30 pm on the Last working day before the hearing is to commence."

On 7th October 2003, in Haggis v DPP [2003] EWHC 2481 Admin (Bailii), after quoting the provisions of the Appeals Practice Direction, which apply equally to appeals to the Divisional Court, I said (in paras 32- 33):

"32 The judges of the Court of Appeal and the Heads of Division have recently considered the language of this practice direction. They take the view that what is really important is that this agreed bundle should be filed not less than seven days before the hearing. This appears to be a more reasonable time. If an agreed bundle with each sides authorities is not filed at least seven days before the hearing, again the judges of this court and in the Court of Appeal are likely to show very much less forbearance than they have in the past.

"33 I draw particular attention to the need to mark in the authorities the passages on which the advocates wish to rely. It is also very helpful if the page number can be mentioned in the skeleton argument, although that is not specified in the practice direction. The reason for this is that the judges wish to be able to pre-read whenever they reasonably can. If they are simply referred to a case which may have 20 or 25 pages in it, it is unlikely that they are going to be enthusiastic about reading all 25 pages in order to run to earth, if they spot it, the principle on which the advocate seeks to rely."

I now have the authority of the Master of the Rolls to make it clear that this new practice will apply in the Court of Appeal as well, subject to the proviso that very strict attention need not be paid to the duty to mark the authorities in the margin provided, and provided only, that the agreed bundle of authorities is filed before the seven-day deadline and each party has by that time identified in the skeleton arguments they have filed the precise passages in the judgments the court should read.

We are happy to substitute seven days for the 28 days in the Appeals Practice Direction, but by seven days before the hearing we must have an agreed bundle of authorities, prepared in full compliance with the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, so that when judges of the court do their pre-reading they have the authorities to which they can refer."

(iv) Skeleton Arguments (paragraphs 5.9 and 7.6 - 7.7 of the Appeals PD)

"The Practice Direction provides (in paragraph 5.9of the Appeals PD) for a skeleton argument to be lodged with the appellants notice or shortly thereafter, and (in paragraphs 7.6 to 7.7 of the Appeals PD) for the respondents skeleton argument to be lodged at an appropriate time after the appellants skeleton has been served. It is essential that every advocate who drafts any skeleton argument for the Court of Appeal observes the mandatory requirements of paragraphs 8.1and 8.2 of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, and has the provision of paragraph 8.4 of that Practice Direction well in mind. The purpose of these requirements is to focus attention on points actually in issue in the appeal at an early stage, and to facilitate the subsequent preparation of bundles of authorities.

Nothing is said in the Appeals Practice Direction about late skeletons. We are familiar with the need for advocates, close to the hearing, particularly if there has been a change in representation, or if there have been recent decisions in the House of Lords or the Court of Appeal that are relevant, to file a supplemental skeleton. Until now the judges of the court have been fairly relaxed about the time at which they are filed. If the seven day rule is now widely recognised as the time at which papers must be available for the judges for pre-reading in the week before the hearing, it is less likely that the judges of this court will be relaxed or even ready to read skeleton arguments which are lodged less than seven days before the hearing."