PREPARE A NON-COMPLIANT BUNDLE OF AUTHORITIES: THE RISKS OF COSTS BEING DISALLOWED: COURT OF APPEAL SOUNDS A WARNING

In  the judgment today in Parr v Keystone Healthcare Ltd & Ors [2019] EWCA Civ 1246 Lord Justice Lewison expressed concerns about the failure to follow the Practice Direction on the citation of authorities.

 

THE CASE

The Court of Appeal dismissed a defendant’s appeal.  Lewison LJ had concerns about the bundle of authorities.

THE BUNDLE OF AUTHORITIES

  1. Finally, by way of postscript, it is a matter of considerable regret that the practice direction on the citation of authorities at [2012] 1 WLR 780 (referred to in PD 52C paragraph 29 (2)) has been almost wholly ignored. We were supplied with print outs and handed down transcripts of authorities that have been reported in the official law reports (e.g. Bristol & West BS v Mothew [1998] Ch 1A-G v Blake [2001] 1 AC 280; Stein v Blake (No 2) [1998] 1 All ER 724). Unreported cases were cited for propositions that could be found in reported ones. The whole of my gargantuan judgment in Ultraframe (UK) Ltd v Fielding (which runs to 494 pages) was copied, even though only a few pages were of any conceivable relevance to the issues on the appeal. Contrary to PD 52C paragraph 29 (2) many of the authorities were supplied without marking the relevant passages.
  2. Judges of this court have limited time for pre-reading in advance of an appeal. Adherence to the practice directions means that that limited time can be more productively spent. Parties can expect that the cost of preparing a non-compliant bundle of authorities is at risk of being disallowed.

THE PRACTICE DIRECTION

PRACTICE DIRECTION: CITATION OF AUTHORITIES (2012)
Preamble
1. This Practice Direction is issued in order to clarify the practice and
procedure governing the citation of authorities and applies throughout the
Senior Courts of England and Wales, including the Crown Court, in county
courts and in magistrates’ courts.
Repeal
2. Practice Direction (Court of Appeal: Citation of Authority) [1995] 1 W.L.R.
1096 of 22 June 1995, Practice Statement (Court of Appeal: Authorities)
[1996] 1 W.L.R. 854 of 15 May 1996, paragraph 8 of Practice Statement
(Supreme Court: Judgments) [1998] 1 W.L.R. 825 of 22 April 1998,
paragraph 3 of Practice Direction (Judgments: Form and Citation) [2001]
1 W.L.R. 194 of 11 January 2001, and, in so far as they remain in force,
paragraphs 10.1 and 10.2 of Practice Direction ((Court of Appeal (Civil
Division)) [1999] 1 W.L.R. 1027 of 19 April 1999 are hereby revoked.
Variation
3. Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 W.L.R.
2870 of 08 July 2002 (as amended) is varied so that all references to
paragraph 10.1 of Practice Direction (Court of Appeal (Civil Division))
[1999] 1 WLR 1027; [1999] 2 All ER 490 are to read as references to
paragraphs 5 – 13 of this Practice Direction.
4. Practice Direction 52 supplementing CPR Pt 52 is varied so that paragraph
15.11(2) reads as follows:
‘(2) The bundle of authorities should comply with the requirements of
Practice Direction: Citation of Authorities (2012) and 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.’
Citation of Authority
5. When authority is cited, whether in written or oral submissions, the
following practice should be followed.
6. Where a judgment is reported in the Official Law Reports (A.C., Q.B., Ch.,
Fam.) published by the Incorporated Council of Law Reporting for
England and Wales, that report must be cited. These are the most
authoritative reports; they contain a summary of the argument. Other
series of reports and official transcripts of judgment may only be used
when a case is not reported in the Official Law Reports.
7. If a judgment is not (or not yet) reported in the Official Law Reports but it
is reported in the Weekly Law Reports (W.L.R.) or the All England Law
Reports (All ER) that report should be cited. If the case is reported in both
the W.L.R. and the All ER either report may properly be cited.
8. If a judgment is not reported in the Official Law Reports, the W.L.R, or the
All ER, but it is reported in any of the authoritative specialist series of
reports which contain a headnote and are made by individuals holding a
Senior Courts qualification (for the purposes of section 115 of the Courts
and Legal Services Act 1990), the specialist report should be cited.
9. Where a judgment is not reported in any of the reports referred to in
paragraphs [6] to [8] above, but is reported in other reports, they may be
cited.
10. Where a judgment has not been reported, reference may be made to the
official transcript if that is available, not the handed-down text of the
judgment, as this may have been subject to late revision after the text was
handed down. Official transcripts may be obtained from, for instance,
BAILLI (http://www.bailii.org/). An unreported case should not usually be
cited unless it contains a relevant statement of legal principle not found in
reported authority.
11. Occasions arise when one report is fuller than another, or when there are
discrepancies between reports. On such occasions, the practice outlined
above need not be followed, but the court should be given a brief
explanation why this course is being taken, and the alternative references
should be given.
12. If a judgment under appeal has been reported before the hearing but after
skeleton arguments have been filed with the court, and counsel wish to
argue from the published report rather than from the official transcript,
the court should be provided with photocopies of the report for the use of
the court.
13. Judgments reported in any series of reports, including those of the
Incorporated Council of Law Reporting, should be provided either by way
of a photocopy of the published report or by way of a copy of a
reproduction of the judgment in electronic form that has been authorised
by the publisher of the relevant series, but in any event (1) the report must
be presented to the court in an easily legible form (a 12-point font is
preferred but a 10 or 11-point font is acceptable) and (2) the advocate
presenting the report is satisfied that it has not been reproduced in a
garbled form from the data source. In any case of doubt the court will rely
on the printed text of the report (unless the editor of the report has
certified that an electronic version is more accurate because it corrects an
error contained in an earlier printed text of the report).
14. This Direction is made by the Lord Chief Justice with the agreement of the
Master of the Rolls and the President of the Family Division. It is issued in
accordance with the procedure laid down in Part 1 of Schedule 2 to the
Constitutional Reform Act 2005.