ANOTHER TRIAL BUNDLE CASE: ACTION STRUCK OUT FOR FAILURE TO PREPARE TRIAL BUNDLE: APPEAL AGAINST STRIKING OUT DISMISSED
In Al-Balhaa v Raphael & Ors  EWHC 1323 (QB) Mr Justice Nicol upheld a finding that the action was struck out because of the claimant’s failure to prepare a trial bundle and relief from sanctions should not be granted. A peremptory order had been made in relation to bundles, the claimants failed to comply. The action stood struck out and an “informal” application for relief from sanctions had been rightly refused.
“Ground 8 is a procedural challenge. It alleges that the Judge failed to allow an application for relief against sanctions to be made. This is hopeless. There had been no application notice seeking relief from sanctions, but the Judge plainly entertained the last-minute oral application for relief. In her skeleton argument, Ms England contends that the Judge erred by not assisting the Appellant’s sister and directing her to the three-stage test in Denton. Judges will sometimes assist a litigant in person in this way, but it is not mandatory for them to do so.”
The claimant brought an action for harassment and other matters against the defendants. At a pre trial review in September 2017 the claimants were ordered to file a trial bundle.
THE ORDER IN RELATION TO THE TRIAL BUNDLE
The trial date was the 30th October. On the 8th September 2017 the judge made a very specific order in relation to the trial bundle. This was made by way of a peremptory order.
“(1) The Claimants shall serve on the Defendants’ solicitors by 4 pm on 28 September 2017 a draft indexed and paginated trial bundle to include the pleadings, orders, witness statements and exhibits which complies with CPR 39AP.3;
(2) The Defendants shall comment on the draft trial bundle by 4 pm on 6 October 2017 and shall provide copies of all documents which they contend should be added to the trial bundle;
(3) On receipt of the Defendants’ comments and documents the Claimants shall either (i) file and serve by 4 pm on 13 October 2017 a revised indexed and paginated trial bundle to include all the Defendants’ additional documents, or (ii) file and serve by 4pm on 13 October 2017 an indexed and paginated supplementary trial bundle comprising all the Defendants’ additional documents;
(4) In the event that the Claimants fail to comply with sub-paragraphs (1) and (3) the claims in 3BT00449, in A90YJ231 and in B30YM427 shall stand struck out.”‘
The claimants did not prepare a bundle in accordance with the terms of that order. The defendants sought a declaration that the action stood struck out.
THE DECISION OF THE CIRCUIT JUDGE
Nicol J set out the decision of the Circuit Judge.
‘in compliance with the claimant’s express request to me and in the light of my knowledge that she had the resources at times to consult counsel and to have counsel represent her and her brother at trial, I entrusted to the claimant the task of discharging the burden of preparing the trial bundle, whether she chose to discharge that through solicitors or counsel or her own hand.’
‘. As I have said, the preparation of the trial bundle is essential for the efficient conduct of litigation. From what I have heard today it seems to me that for reasons which I shall explain the claimant cannot be trusted to fulfil this task. The service of different trial bundles on the defendants was not the only failing on this claimant’s part. In correspondence the defendants’ solicitors sought politely but firmly to impress upon the claimant that the bundle which constituted her initial service fell short of what was required.’
‘ … The matters which are most troubling and which were pointed out to the claimant before 13 October fell were as follows: 1: She inserted into the bundle material which had not previously been disclosed. An example of that is to be found behind tab 2 of the defendants’ application bundle. The second troubling aspect is that the claimant substituted material: for example, see tab 8 of the defendants’ application bundle, the substitution of what the claimant now says is a draft witness statement for an actual witness statement. The third aspect which troubles me particularly is this – an example is to be found behind tab 8 at page 446 of the defendants’ application bundle and I am reading at 446 from the bottom of the page, a whole series of paginations have been adopted during this case, but for example at that page there is to be found what appears to be the claimant’s manuscript comment crossed ‘not true’. No party to litigation should be putting into a trial bundle his or her own personal annotations. This should be an instrument for the use of the court, the judge, the witnesses; it is not a vehicle for a party to litigation to convey their own personal comments on the content of the document.
. In a witness statement which the claimant prepared for the purposes of her application before the court today, what the claimant said at paragraph 9 is this – and I hasten to add that this document, this witness statement runs to nine pages, 38 paragraphs, and is dated 19 October 2017. Paragraph 9 reads as follows:
“It was only one document inserted which was my draft witness statement 27 July 2015 rather than the final draft. I had both witness statements in front of me. I picked the draft rather than the final. If the solicitor can see that the incorrect statement has been placed into the bundle then all they need to do is to inform me and I would simply insert the correct final version. I cannot see why the solicitor for the defendant cannot cooperate with me to correct the bundle without troubling the court”.
The Judge noted that his directions at the PTR had set out the procedure which should be followed by the Defendants if they were unhappy with the draft trial bundles. The Defendants had followed this course. The Judge noted that the Claimants then had two alternatives: they could either file and serve a revised trial bundle or they could file and serve an indexed and paginated supplementary trial bundle comprising all the Defendants’ additional documents. The Judge observed that the Claimants had taken neither course. He continued at :
‘It was the express obligation of the claimant to do that. It is not good enough to come along to court, so far as I am concerned and say, “Well, if they want to pin in any other additional documents they can jolly well put it in themselves and put in in a supplementary bundle of their own”
. This is not the way in which litigation should be conducted. I repeat I only gave the task of compiling the bundle to the claimant because she expressly asked for it and I made clear on the last occasion what the sanction would be if she did not comply. In my view, the complainant cannot be trusted to fulfil the responsibility which she sought and which I entrusted to her. In consequence, and pursuant to the order which I made on 8 September the claims in the actions three to nine, A to 1, B to 7, set out in subparagraph four (4) of my order are struck out.’
‘. I asked the claimant, “What more would you have done had you known on Monday the 16th rather than Tuesday the 17th that this application was going to be heard on Friday?” In her answer it became clear that she had the benefit of counsel’s advice during the course of the week and the product of this advice was simply to make the application which was made on her behalf for the adjournment of these proceedings. This afternoon, for the first time, at 2.05pm the claimant asked for relief from sanctions, relief from the sanctions of striking out.
. Even if there were a formal application served in time, before me, for relief from sanctions I would reject it because the attitude towards her litigation which this claimant adopts is wholly adverse to the efficient conduct of this case, as CPR require. Even if I were to give relief from sanctions and give the claimant more time I am far from satisfied that she would produce by the date of trial a functioning trial bundle without putting everybody else to enormous cost, trouble and expense. I declare that the identified claims are struck out.’
THE CLAIMANT’S UNSUCCESSFUL APPEAL
By the time of the appeal one of the claimants had gone bankrupt. There was only one effective claimant. Their appeal was dismissed.
Ground 8 is a procedural challenge. It alleges that the Judge failed to allow an application for relief against sanctions to be made. This is hopeless. There had been no application notice seeking relief from sanctions, but the Judge plainly entertained the last-minute oral application for relief. In her skeleton argument, Ms England contends that the Judge erred by not assisting the Appellant’s sister and directing her to the three-stage test in Denton. Judges will sometimes assist a litigant in person in this way, but it is not mandatory for them to do so. Judge Lamb had reason to believe that the Claimants had access to legal advice even if they were not represented before him. The Appellant’s sister had made a lengthy witness statement in support of her application for an adjournment.
I do not accept that Judge Lamb was obliged to adopt a particular formula or straightjacket when considering the Appellant’s oral application for relief from sanctions. CPR r.3.9 confers on the Court the power to give relief from any sanction ‘on application’. Ordinarily, therefore, the application in question must be made in conformity with Part 23 of the Civil Procedure Rules. Neither Mr Gallivan nor Ms..Hodgson submitted that Judge Lamb was incapable of giving relief from sanctions in the absence of a formal application, but the informal way in which it was presented was not without consequence. Notably, Rule 3.9(2) says that the application must be supported by evidence. Since there was no formal application, there was no evidence specifically directed at the material issues which the Judge had to decide when considering relief against sanctions. There was only such evidence as could be gleaned indirectly from the other material before the Judge. In any case, a complaint that Judge Lamb did not formally address the three stages in Denton is a barren argument if, nonetheless, the essence of his reasoning can be deduced and he reached a decision which was open to him.
Rehman has some parallels with the present case. In that case as well the Appellant/claimant had been unrepresented before the county court Judge. In that case, too, the claimant had failed to comply with an earlier ‘unless’ order. The county court judge had then found that the non-compliance meant that the claim should be struck out. But Rose J. found that the county court Judge in that case did not exercise her discretion at all (see ) and that it therefore fell to the High Court to do so. She considered that striking out was disproportionate – see . The present case is different. Judge Lamb did take a deliberate decision not to give relief from sanctions. Unless he misdirected himself in principle or unless his decision was irrational or otherwise beyond his discretion, it is not for me to exercise that discretion again.
In my view, Judge Lamb did not err in principle. While it may have been preferable for him to go through the Denton stages, it is clear that he thought that his PTR directions had been breached in a manner that was serious and significant. It is important to recall that a 5-day trial was due to start in 5 working days. The trial had been listed since April or May 2017. At the PTR on 8th September 2017, the Claimants had applied to vacate the PTR and/or the trial. As Judge Lamb recorded in his order following the PTR, he had dismissed that application and characterised it as totally without merit. In paragraph  of his judgment he identified what he regarded as the ‘most troubling’ aspects of her default. These were failures to comply with the Practice Direction over and above the omission of the documents which the Defendants wanted to be included in the trial bundle. Those aspects were also in addition to the provision of different copies of the trial bundle to the two sets of defendants. This had not been the first time that the Claimants had provided different trial bundles. They had also done so for a hearing before HHJ Hand QC on 17th February 2017. Further, it is not to be forgotten that the order which Judge Lamb made on 8th September 2017 was an ‘unless’ order. Its consequences would follow unless the Court granted relief from sanctions – see CPR r.3.8 and Marcan Shipping (London) Ltd v Kefalas  EWCA Civ 463,  1 WLR 1864 CA.
In the ordinary course, where a formal application for relief from sanctions is made the court would look to the evidence filed in support of the application pursuant to r.3.9(2) for such explanation of the breach as the applicant wished to advance. The informal nature of this application meant that that usual course was not available. There was, though, in the papers before Judge Lamb and, in particular, in Ms Al-Balhaa’s witness statement of 19th October 2017, some explanation or justification for some of what had happened. Thus, she said:
i) that PDC (solicitors for some of the Defendants) had inserted paragraph 4(3) into the Judge’s order. As I have explained, Mr Paget accepts that the sealed order (including paragraph 4(3)) should be taken as the definitive expression of what the Judge had ordered at the PTR.
ii) The Claimants had included a draft of one witness statement into the bundle by mistake. The error was not deliberate.
iii) Preparing the draft trial bundles had taken a great deal of work. There was not the time to revise them to meet all the Defendants’ objections in the time available.
iv) DJ Backhouse had said that the trial bundles should be limited to 500 pages. Ms Al-Balhaa had tried to observe this limit.
v) The costs budgets had been printed on A3 paper. Ms Al-Balhaa had asked the solicitors for copies on A4 paper.
vi) The Defendants were trying to take advantage of the Claimants as litigants in person.
Although the Judge did not specifically consider stage 2 of the Denton process and did not expressly consider each of Ms Al-Balhaa’s explanations, it is implicit in his decision that he was unimpressed by them. I would not reverse Judge Lamb’s order because he did not dwell further on his reasons for taking this course.
i) As I have said, Mr Paget accepted that the sealed order was the definitive expression of what Judge Lamb had directed at the PTR. It plainly superseded the order of DJ Backhouse.
ii) Judge Lamb could see that, although Ms Al-Balhaa was representing herself and her brother on 20th October 2017, she had taken advice from Mr Coulter (who had written to the Judge on 19th October 2017 about his inability to be present at the hearing on 20thOctober) and Mr Coulter had also said that he was instructed to represent the Claimants at the trial. These were not, therefore, claimants who were having to manage everything on their own without any legal assistance.
iii) The evidence was an incomplete explanation for the defaults which had occurred. In the course of her oral submissions, Ms Al Balhaa had tried to supplement them and tried to explain, for instance, why the draft trial bundles differed. The explanation was confusing.
iv) The Judge clearly thought that the Defendants’ concerns about the trial bundles were well-founded. They were not simply trying to take advantage of the Claimants.
Finally, in the Denton process the Judge had to consider all the circumstances of the case so as to deal justly with the application for relief from sanctions. Mr Paget acknowledged that this was, effectively, a case management decision, as to which, an appellate court will give a large measure of discretion to the first instance judge. He also accepted that this Judge had had experience of the Appellant’s sister by her conducting the hearing on behalf of the Claimants on 8th September as well as on 20th October. Nonetheless he submitted that the Judge had overlooked the alternative which had been incorporated into his order of 8th September. That alternative was for a supplementary trial bundle to be prepared and copied. The Defendants had already collated the documents which they said were missing from the Claimants’ draft trial bundle. Even though the task had previously been given to the Claimants, it would have been a simple matter for the Judge to direct that the Defendants should make sufficient copies of this supplemental bundle for use at trial. Striking out the claims was a particularly draconian sanction, even more so given the length of time over which the claims had lasted and been prepared for trial.
I recognise, of course, the severity of the sanction from which the Claimants were asking relief, but I am not persuaded by Mr Paget that the refusal of relief was outside the Judge’s discretion. It is unrealistic to submit that the Judge overlooked paragraph 4(3)(ii) of his order of 8th September 2017 since he quoted that very part in his judgment. In addition, in my judgment, Mr Paget’s submissions regarding the missing documents only deals with part of the Judge’s concerns. Those submissions do not address the Judge’s concerns about the bundle which the Appellant’s sister had produced. They had the defects which have already been mentioned. The imminence and likely length of the trial were also important factors. Although the Court must take into account all the circumstances of the case, specific reference is made to the needs ‘(a) for litigation to be conducted efficiently and at proportionate cost and (b) to enforce compliance with rules, practice directions and orders’ – see rule 3.9(1). The efficient conduct of a trial is substantially hampered if bundles are not properly paginated, if documents are omitted, if the different bundles are not identical as well as the other concerns identified by Judge Lamb.