OPENING LINES OF JUDGMENTS: A DELUGE OF DOCUMENTARY EVIDENCE AND FRUSTRATED CASE MANAGEMENT MECHANISMS

This year has been fairly sparse in relation to notable opening lines to judgments. It is indeed difficult to match up to Martinez (t/a Prick) & Anor v Prick Me Baby One More Time Ltd (t/a Prick) & Anor [2018] EWHC 776 (IPEC). However the judgment of McCloskey J in Allister & Anor, Re Application for Judicial Review [2019] NIQB 79 caught my attention. Not least for the size of the task the judge faced (and the reference to those matters that assisted them).


THE PREAMBLE TO THE JUDGMENT

McCLOSKEY LJ

“Preamble

I.             As these proceedings progressed they developed certain unforeseen and challenging features: unexpected interruptions; the involvement of additional parties; a dramatic increase of affidavits (upwards of 40 ultimately);  a deluge of documentary evidence (over 10 volumes ); the involvement of additional legal teams (six in total by the end of the hearings); repeatedly frustrated case management mechanisms;  and slipping timetables. The sheer volume of affidavits and bundles of documentary evidence, in tandem with the imperative of delivering final judgment with expedition, has the practical consequence that much of the evidence will not be rehearsed by me, whether in summary form or at all.  The various case management mechanisms devised by the court have ensured that all of the parties have had adequate opportunity to draw to the Court’s attention those aspects of the evidence upon which they place particular reliance.
II.     As the case progressed, three themes (among others) emerged with some prominence. First, the increasing prejudice to the developer; second, the unfairness to Council officers and officials resulting from the wave of delays in a context of trenchant attacks on their integrity and professionalism; third, the damage to the public interest caused by the continuing uncertainty and delayed finality. All of the foregoing is reality: the court passes no judgment on the whys or hows thereof.
   III.             The hearings were, ultimately, completed on 24 June 2019 and certain loose ends were tied up within a week thereafter.  The imperative of delivering the court’s judgment speedily being compelling, certain aids were welcome. I refer particularly to the guide to the voluminous bundles deployed by Mr Alan Kane QC (with Ms Fionnuala Connolly, of counsel) on behalf of the Applicants and the comprehensive written submission of Mr Stewart Beattie QC (with Mr Philip McAteer, of counsel) on behalf of the Respondent Council. Furthermore, prior to completion of the hearings all of the parties were afforded the opportunity to contribute to and comment on most of the purely factual/evidential aspects of what follows.
IV.    It has also been possible to utilise three of the tools which are now standard in planning/environmental judicial reviews under the revised Judicial Review Practice Direction namely a glossary, a list of dramatis personae and a chronology, all agreed by the parties’ legal representatives.   Finally, time limits for oral argument were applied.
V.     The background to the above will become clearer by highlighting certain of the procedural landmarks of this litigation:
(a)                The court made three additional orders in June 2018, the third whereof, dated 27 June (one of two orders on that date) granted leave to apply for judicial review.
(b)                By its order dated 08 October 2018 the court vacated the substantive hearing dates, substituting three dates in November 2018.
(c)                 Following several days of hearings the court, by its further orders dated 10 and 14 December 2018, granted interested party status to five non-parties and made appropriate ancillary and consequential directions.
(d)               The unexpected developments which intervened in December 2018 are reflected in the court’s ex tempore ruling of 10 December 2018 (see Appendix 1).
(e)                By 20 December 2018 the case had been listed on a total of 10 dates for mixed case management and substantive hearing purposes.
(f)                  Four further case management listings followed between 18 January and 01 March 2019.
(g)                The substantive hearing resumed between 25 – 27March 2019 but could not be completed.
(h)                Further substantive listings followed on 10-13 and 24 June 2019 (see Appendix 2).
(i)                  Ultimately the case had been listed before the court on a total of 22 dates.  The court continued to issue case management directions to the end, reflected particularly in its joint orders of 12 and 13 June 2019.
VI.     Given the sheer bulk of the evidence ultimately assembled and the difficulty in separating clearly certain grounds of challenge from others, coupled with the need for expedition, I regret that the judgment contains certain elements of repetition and overlap.  I wondered, in retrospect, whether this case had in truth been a candidate for the assembly of bundles of evidence of a subject by subject basis. I have concluded, however, that given the substantial blurring of many lines, this would probably not have been feasible or, alternatively, would have generated disproportionate expense.”