APPEALS: POINTS OF LAW AND BUNDLES: LITIGANTS SHOWN THE YELLOW CARD: YOU CAN READ THE RULES HERE

June 16, 2022 · by · in Appeals, Bundles, Written advocacy

In  Banks v Blount [2022] EWHC 1491 (QB) Mr Justice Ritchie was critical of an appellant for failing to comply with two basic elements of the practice directions relating to appeals.  The need for clarity and precision when referring to legal principles and for bundles to comply with the relevant Practice Direction. Here we look at the judge’s comments and then the relevant parts of the Practice Directions he refers to.

 

“I do urge the Appellant and all parties who appeal a judgment after a trial to comply with the practice direction in CPR part 52 concerning the appeal bundles. It is not appropriate to rely on the whole trial bundle in an appeal. It took the parties 20 minutes to identify the documents in the trial bundle they wished to rely on. Those should have been in the appeal bundle. I also urge appellant lawyers to read and comply with the practice direction about skeleton arguments and citing authorities.”

 

THE APPEAL

The defendant appealed certain findings made in relation to a right of way, including an injunction.  The judge dismissed the appeal. He observed that the appellant had failed to follow the guidance set down in the relevant practice directions.

FAILING TO CITE PROPOSITION OF LAW

The judge observed that a reference to a whole section of the “White Book” was not compliant with the rules.

 

    1. The Appellant alleges that the injunctions granted were “wholly excessive” and go well beyond what it reasonably necessary and are oppressive.
  1. In support a reference by way of authority was made in the skeleton to the whole of Section 15 of volume 2 of “White Book” by Mr Stenhouse. This is a remarkable breach of CPR PD 52 which states at para. 5.1(4) that a skeleton argument must, when referring to authority, state the proposition of law and identify the parts of the authority that support the proposition. The costs of preparing a skeleton argument which does not comply will not be allowed on assessment. At the appeal hearing no further clarity was provided on the authority stated.

APPEAL BUNDLES

The judge was also concerned about the irrelevant material including in the bundles.
    1. CPR part 52 sets out the powers of this Court and the process for review of the decision of the Court below in this appeal. I can overturn the decisions if any of them was or were wrong or procedurally or otherwise unjust. This is not a rehearing.
    1. The Practice Direction to CPR 52 directs that “only” the relevant documents required for the appeal are to be put in the appeal bundle. The appeal bundle must be lodged and must contain all relevant documents relied upon. The Appellant lodged an appeal bundle and served it. It had 508 pages. It included transcripts of some of the evidence. It did NOT include the trial bundle.
    1. By PD 52B para 6.6 late documents shall be added into the appeal bundle at the latest by 7 days before the appeal hearing. In contravention of the PD the Appellant tried to file the whole trial bundle but did not add it to the appeal bundle. The trial bundle was in fact put before Cotter J. on the permission to appeal hearing. It was sent to me 1 day before the hearing. It contained 1950 pages of documents most of which were irrelevant to the appeal.
  1. At the start of the appeal I invited both counsel to list those pages of the trial bundle which were relevant to the appeal and they did so. They are: 106-107, 171-172, 187, 200, 218-220, 271, 298, 299, 319, 322, 331, 362-386, 388, 1553, the Carey report, the Atkinson report, the Clifford Taylor report. All of those and nothing more should have been in the appeal bundle.

DISMISSING THE APPEAL AND A YELLOW CARD

The judge dismissed the appeal. He set out the importance of complying with the Practice Direction.

 

    1. The appeal is dismissed on all of the grounds put forwards.
  1. On two grounds I have found the appeal to be totally without merit. Pursuant to CPR r.52.20(5) and (6) I have considered making but have chosen not to make a civil restraint order against the Defendant/Appellant. However this is a yellow card warning.
  1. I do urge the Appellant and all parties who appeal a judgment after a trial to comply with the practice direction in CPR part 52 concerning the appeal bundles. It is not appropriate to rely on the whole trial bundle in an appeal. It took the parties 20 minutes to identify the documents in the trial bundle they wished to rely on. Those should have been in the appeal bundle. I also urge appellant lawyers to read and comply with the practice direction about skeleton arguments and citing authorities.

THE RELEVANT RULES

 

PRACTICE DIRECTION 52A

“SECTION V – SKELETON ARGUMENTS

5.1

(1) The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.

(2) A skeleton argument must–

  • be concise;
  • both define and confine the areas of controversy;
  • be set out in numbered paragraphs;
  • be cross-referenced to any relevant document in the bundle;
  • be self-contained and not incorporate by reference material from previous skeleton arguments;
  • not include extensive quotations from documents or authorities.

(3) Documents to be relied on must be identified.

(4) Where it is necessary to refer to an authority, a skeleton argument must –

(a) state the proposition of law the authority demonstrates; and

(b) identify the parts of the authority that support the proposition.

If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why.

(5) The cost of preparing a skeleton argument which –

(a) does not comply with the requirements set out in this paragraph; or

(b) was not filed within the time limits provided by this Practice Direction (or any further time granted by the court),

will not be allowed on assessment except as directed by the court.

5.2 The parties should consider what other information the appeal court will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals.

5.3 Any statement of costs must show the amount claimed for the skeleton argument separately.

 

PRACTICE DIRECTION 52B

The judge identified the relevant sections of the Practice Direction.

6.4 Documents relevant to the appeal:

(1) Subject to any order made by the court, the following documents must be included in the appeal bundle–

(a) a copy of the appellant’s notice;

(b) a copy of any respondent’s notice;

(c) a copy of any appellant’s or respondent’s skeleton argument;

(d) a copy of the order under appeal;

(e) a copy of the order of the lower court granting or refusing permission to appeal together with a copy of the judge’s reasons, if any, for granting or refusing permission;

(f) a copy of any order allocating the case to a track;

(g) a transcript of the judgment of the lower court or other record of reasons (except in appeals in cases which were allocated to the small claims track and subject to any order of the court).

(2) The following documents should also be considered for inclusion in the appeal bundle but should be included only where relevant to the appeal –

(a) statements of case;

(b) application notices;

(c) other orders made in the case;

(d) a chronology of relevant events;

(e) witness statements made in support of any application made in the appellant’s notice;

(f) other witness statements;

(g) any other documents which any party considers would assist the appeal court.

 

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