BUNDLES IN THE SUPREME COURT: EXERCISING RESTRAINT

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There was a short postscript to the judgment of the Supreme Court in Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36> Lord Carnwath gave the single judgment. Even the Supreme Court complains about bundles. This adds to the number of cases in which the courts have complained about bundles.

“This volume included no less than seven House of Lords or Supreme Court authorities, totalling almost 350 pages. The volume was not opened during the hearing.”

THE JUDGMENT

Proliferation of authorities
  1. Before leaving the case, I feel bound to say something about the volume of authorities presented in the court bundles. UKSC Practice Direction 6 deals with the form and content of such volumes (paras 6.5.2ff). The appellants are responsible for production of authorities in paper form in sufficient numbers for the court, subject in due course to the court’s decisions on costs. Paragraph 6.5.5 states:
“The Court has on numerous occasions criticised the over-proliferation of authorities. It should be understood that not every authority that is mentioned in the parties’ printed cases need be included in the volumes of authorities. They should include only those cases that are likely to be referred to during the oral argument or which are less accessible because they have not been reported in the Law Reports.”
  1. In this case the court was presented with eight bundles, including more than 90 cases, reproduced in full, together with 20 other items of statutory material, guidance and textbook extracts (extending in total to some 2,700 pages). The intervention of the Secretary of State was accompanied by two additional bundles, extending to more than 1,000 pages, and including 13 further authorities. The most relevant cases were helpfully, and correctly (PD6 para 6.5.2), brought together in the appellant’s volumes 1 and 2. Of the remainder the vast majority were not referred to in oral argument, and were unlikely on any view to be more than peripheral to the determination of the issues on which permission had been given.
  2. I take as an example volume 4 headed “Precedent – whether to depart from previous/follow Europe (or not)”. This volume included no less than seven House of Lords or Supreme Court authorities, totalling almost 350 pages. The volume was not opened during the hearing. The propositions which the cases were apparently intended to support were familiar, uncontentious, and adequately summarised with appropriate citations, in the printed cases. Similarly, the subjects covered by volume 6 (“absence of proper reasons” and “standard of scrutiny”) can be taken as sufficiently familiar to the court not to require extensive citation; still less the inclusion in the bundle of the whole of the Wednesburycase [1948] 1 KB 223 (12 pages), Edwards v Bairstow [1956] AC 14 (26 pages) and Kennedy v Charity Commission [2015] AC 455 (107 pages).
  3. It is essential that those involved in the preparation of these bundles, whether as counsel or solicitors, take full responsibility for keeping their contents within reasonable bounds and exercise restraint. The warning against proliferation of authorities is intended for the protection not just of the court, but more for the parties on whom the costs will ultimately fall. In many cases (as I assume in this case) they will be borne in one way or another from public sources.

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