THE COPYING OF TRIAL BUNDLES: WHO PAYS THE PRICE?

In the judgment today in Axnoller Events Ltd v Brake & Anor [2021] EWHC 1706 (Ch) HHJ Matthews (sitting as a High Court Judge) had to determine an issue in relation to who pays the costs of copying a trial bundle for a party, in circumstances where an unrepresented party already had an electronic copy of the bundle.  The case involved considering whether an earlier court order should be varied.

 

THE CASE

The applicants had been represented in long-running proceedings and had recently become litigants in person.  They are claimants in one action and defendants in another. There are two trials pending.  The trial bundles in each are identical and the trials are to be heard immediately after each other. The applicants applied to vary an order that they be responsible for the costs of preparing trial bundles.

THE ORDER IN RELATION TO TRIAL BUNDLES

A High Court judge made directions in the matter, including directions as to the provision of electronic copies

“17. There shall be a single combined bundle for the trial of the Possession Proceedings and the Eviction Proceedings (the Bundle). The parties shall liaise with each other and seek to agree the contents of the Bundle.

18. The Guy Parties shall be responsible for producing the Bundle. The Brakes shall provide comments on the draft index for the Bundle no later than 4 PM on 9 April 2021.

[ … ]

20. By 4 PM on 14 April 2021, the Guy Parties will provide the Brakes with an electronic copy of the Bundle (who shall be responsible for preparing their own hard copies, if so advised) and lodge a hard copy at Court.”

THE APPLICATION IN RELATION TO TRIAL BUNDLES

The Brakes applied to vary the order so that the other party would provide a copy of the trial bundle free of charge.

    1. However, on 11 June 2021 notices of change of solicitor were filed in all the matters in which the solicitors had been acting for the Brakes, confirming that the Brakes were now acting in person. On 16 June 2021 Mrs Brake sent an email to the court, but not in fact copied to the Guy Parties, setting out paragraph 20 of the order of 31 March 2021 (though she actually referred to it as paragraph 4). She said that, although the Guy Parties’ solicitors had supplied the electronic bundle ordered by the judge to her own solicitors, they had not provided her with a hard copy before they ceased to act. She had asked the Guy Parties for one, but they declined to supply it unless they were reimbursed for the copying and courier charges which would be made by external suppliers.
    1. Accordingly, she asked the court to vary the direction of Mr Justice Marcus Smith in this respect. In her email she said that “we do not have enough money to pay for that and time is marching on without me being able to prepare”. She also submitted that there had been “a material change in circumstances since the order was made,” referring to the fact that she now had no representation at all. She said she was “already at a massive disadvantage as a litigant in person and need a physical bundle”.
  1. On 17 June 2021, the Guy Parties’ solicitors responded that they had now sent a hard copy of the trial bundle to the Brakes, and would be sending an invoice for reasonable copying and courier charges. Whilst that relieves the immediate pressure in enabling Mrs Brake to begin her preparations for the two trials, it does not of itself resolve the application made for a variation of the order of Marcus Smith J. In all the circumstances, and not least in order to deal with the matter as quickly as possible, I will not require Mrs Brake to issue a formal application notice. Instead, I will deal with the matter on the basis of the written submissions already made.

 

THE JUDGE’S REFUSAL OF THE APPLICATION

The judge reviewed the legal principles in detail.  He declined to amend the order. The Brakes remained responsible for the costs of copying if they wished to have a hard copy bundle.
Practice directions
    1. Practice directions are made under the inherent jurisdiction of the court, although pursuant to statutory procedures, such as those in section 5 of the Civil Procedure Act 1997 or Part 1 of Schedule 2 to the Constitutional Reform Act 2005. But they are statements of practice, and not legislation. In KU v Liverpool City Council [2005] 1 WLR 2657, CA, Brooke LJ (giving the judgment of the court) said:
“48. The status of a practice direction has been authoritatively delineated by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 at para 21, May LJ in Godwin v Swindon Borough Council [2001] EWCA Civ 1478 at [11], [2002] 1 WLR 997, and Dyson LJ in Leigh v Michelin Tyre plc [2003] EWCA Civ 1766 at [19]-[21], [2004] 1 WLR 846. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”
This dictum has been repeated in many later cases, and approved in the Supreme Court: see Re NY (A Child) [2020] AC 665, [38]. Accordingly I do not doubt that it is open to the court, where the justice of the case requires, to direct that the party filing a hard copy bundle need supply only an electronic copy to another party, as Marcus Smith J did here.
    1. The final sentence of paragraph 27.2 of CPR PD32, set out above, refers to the court directing another party supplying an unrepresented party with a copy of the bundle. In relation to that, I note the observations of Neuberger J (as he then was) in Maltez v Lewis, unreported, ChD, 27 April 1999. In that case the judge held that the court had no jurisdiction to order that the applicant’s opponent not engage leading counsel in a forthcoming trial where the applicant was proposing to instruct junior counsel. The applicant had argued that, if counsel were of very different seniority, there would be no level playing field (within CPR rule 1.1(2)(a)) and it would be disproportionate (within rule 1.1(2)(c)).
    1. Neuberger J refused the application, saying that the choice of legal representative was a fundamental right, even though it might not always be right to make an unsuccessful party pay increased costs of the successful party. Nevertheless, he said that, where one party was represented by a small firm, and the other by a larger, the overriding objective might make it appropriate “to direct the party instructing the larger firm to take on the duty of preparing and copying bundles”.
    1. In the present case, the Brakes are the claimants in the eviction claim. In fact, at the time of the order of 31 March 2021, they were not unrepresented, as they then still had solicitors. Nevertheless, Marcus Smith J directed that the Guy Parties’ solicitors should prepare and produce the trial bundle for both claims, provide an electronic copy to the Brakes, and lodge a hard copy at court.
    1. Paragraph 27.13 of CPR PD32 refers to the claimant’s solicitors supplying all parties with identical copies of the bundle. However, the judge’s order has departed from that, in expressly providing that the Guy Parties should supply only an electronic copy of the bundle to the Brakes, and the Brakes should arrange for their own hard copy, whilst the Guy Parties should nevertheless lodge a hard copy with the court. Whilst the text is identical, the format is not. Mrs Brake says that, now that they no longer have any solicitors, the judge’s order should be varied so that a copy is provided to them without payment, at least at this stage. (I say “at this stage” because the costs involved in the copying and delivery of the bundle will be costs incurred by the claimant in the claim, and if the claimant is successful the claimant would normally expect an order for costs in its favour to include those costs.)
    1. When I began practice as a solicitor, the usual course was for the parties’ solicitors to agree on an index of documents to go in the trial bundle. In small cases it might be dealt with in correspondence. In larger cases there would be a round table meeting. Once the index was agreed, the claimant’s solicitors prepared copies of the bundle for filing at court (under RSC Ord 34, rule 10(2)), and for themselves and their counsel, but generally left their opponents to prepare their own. There was no equivalent then to paragraph 27.13.
    1. With the advent of very largescale litigation, however, the efficiency of the opponents asking the claimants’ solicitors to make copies for them too became apparent. It was quick and easy, and above all it meant that all copies of the trial bundle (including, critically, the pagination) were identical. But if the claimants’ solicitors did this, it was at the request of their opponents, and they charged their opponents for the copying accordingly. It appears from the emails from the Guy parties’ solicitors that that practice continues. Paragraph 27.13 of the Practice Direction formalises this practice. But there is nothing in it to require that the supply of copy trial bundles should be free of charge.
Variation of an order
    1. The question now is whether it would be right to vary the order of Marcus Smith J. The court has power to do this under CPR rule 3.1(7), set out above. In the recent decision of the Court of Appeal in Allsop v Banner Jones Solicitors [2021] EWCA Civ 7, Marcus Smith J (with whom Lewison and Arnold LJJ agreed) said:
“24. … It is very clear that this provision cannot generally be used to vary or revoke final orders (that is, orders that give rise to a res judicata estoppel) and equally clear that even interlocutory decisions will generally only be varied or revoked where either (a) there has been a material change of circumstance since the original order was made or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated: Tibbles v. SIG plc[2012] EWCA Civ 518[2012] 1 WLR 2591.”
    1. Here the order is an interlocutory order. The Brakes argue that ceasing to be represented by solicitors amounts to a material change in circumstances and justifies a variation of the order. I do not agree. The Brakes’ application to adjourn the trials was made to me in April on the basis that Mrs Brake would be acting as the advocate, albeit with the assistance of solicitors. She would therefore need to prepare for the trials as such advocate, and not merely as a party or a witness. There was no suggestion then that the order of Marcus Smith J of 31 March 2021 should be revisited. The absence of solicitors now will undoubtedly increase the burden on Mrs Brake, but it will make no difference to her role during the trials. She will be the advocate, as has been intended since April. I fail to see that the solicitors ceasing to act means that the Brakes now have a need for supply of a hard copy of the bundle without payment which they did not have before.
Litigants in person
    1. I remind myself that, absent specific provision made in the rules, the position of a litigant in person is the same as that of a represented litigant, and it is generally not right to give advantages to litigants in person which are not given to represented litigants. In Barton v Wright Hassall [2018] 1 WLR 1119, SC, Lord Sumption (with whom Lord Wilson and Carnwath agreed) said:
“18. … At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties.”
And Lord Briggs (with whom Lady Hale agreed) said:
“42. … If, as many believe, because they have been designed by lawyers for use by lawyers, the CPR do present an impediment to access to justice for unrepresented parties, the answer is to make very different new rules (as is now being planned) rather than to treat litigants in person as immune from their consequences.”
So ceasing to be represented is not of itself a sufficient reason to revisit orders made earlier.
Impecuniosity
    1. Mrs Brake also says that she is unable to afford the cost of a hard copy of the bundle. That may be true, but it cannot justify a variation of the order. The Brakes are the claimants in one of the two trials, and cannot complain that they are being brought to court against their will. Some expenditure by each of the parties is unavoidable. Equipping yourself with the necessary papers for the trial process is part of that. The reference in CPR rule 1.1(2)(a) to “equal footing” does not mean that litigation cannot take place unless all parties have equal resources. But in any event, the “equal footing” is only one of several (potentially competing) matters which the court must take into account in dealing with litigation justly and at proportionate cost.
    1. Moreover, it is not as if the Brakes do not have access to the trial bundle. They have an electronic copy. I know that originally Mrs Brake complained that her home internet speed was so slow that she could not download the files. Whilst it appears that that problem has now been got over in some way, it would not have been an answer. Electronic files can be delivered on memory sticks and CDs as well as by email. Or she could have gone to an internet café or the home of a friend with better internet access and downloaded the files there.
Human rights
    1. In her submissions, Mrs Brake did not in fact refer to Article 6 of the European Convention on Human Rights (made justiciable in English law by section 1 of the Human Rights Act 1998). Nevertheless, I should mention it for completeness. That article provides for the right to a fair trial. This will generally include disclosure of relevant documents, the opportunity to know and comment on all the evidence adduced and legal submissions made, and the opportunity to present a case, including to adduce evidence and make submissions.
    1. But so far as I am aware article 6 does not require that a copy of the trial bundle be supplied free of charge to one party by the other, even if the requesting party is impecunious. As it happens, in the present case an electronic copy was supplied without charge to the Brakes’ solicitors, and a further electronic copy was made available to Mrs Brake after her solicitors ceased to act. The Brakes therefore have access to the whole bundle. They can print it out or not, as they wish. I see no basis here for varying the order of Marcus Smith J.
Professional and lay advocates
    1. Finally, although strictly speaking I do not need to decide this, I do not think that the assumption of the advocate’s role by Mrs Brake in April would have justified a variation of the order of 31 March 2021 either. For one thing, given the upheaval created by the withdrawal of leading and junior counsel, it must have been obvious that there was serious question mark over whether the Brakes would be represented by an advocate at trial. It was against that background that the judge made his order. But, in any event, even if there were a professional advocate at trial, that advocate might still need a hard copy bundle for some purposes. There is no sufficient difference between a professional and a lay advocate in this respect.
Conclusion
  1. In my judgment, therefore, this is not an appropriate case in which a to vary the order of Marcus Smith J. The Brakes were supplied with and still have an electronic copy of the bundle, which they can print out if they wish or can arrange to be printed out by a third party. If they request and receive a hard copy from the Guy Parties’ solicitors, there is no reason in this case why those solicitors should not charge for it in accordance with their usual practice.