APPEALS, BUNDLES AND “SPEAKING NOTES”: BUNDLES(INCLUDING PAGE NUMBERING) GO AWRY: A “SPEAKING NOTE” IS NOT TO BE USED AS A SUPPLEMENTARY SKELETON ARGUMENT

May 30, 2023 · by · in Advocacy, Appeals, Civil Procedure, Written advocacy

The judgment of Mr Justice Ritchie in Masih & Anor v Royal Wolverhampton NHS Trust [2023] EWHC 1280 (KB) contains many matters of interest in relation to the conduct of the trial and appeal.   Here we look at two aspects: the old, old, problem of inadequate bundles ( including bundles with different pagination) and the status of a “speaking note”.

“I consider that the purpose of a skeleton argument is to argue out and fulfil the permitted grounds of appeal. It gives the Respondent notice of the case it has to meet. It informs the Court in advance of the arguments in the appeal. It is not a formality to be abandoned at the hearing by the use of a speaking note.”

 

THE CASE

The judge was hearing an appeal against a finding for the defendant in a clinical negligence case.  The claimant had been given permission to appeal on limited grounds.

THE BUNDLES

Bundles and evidence
    1. The Court was provided with various digital appeal bundles named as follows: (1) appeal hearing bundle; (2) supplemental bundle; (3) appeal bundle part 1; (4) appeal bundle part 2; (5) application for determination at hearing bundle; (6) Doc00205620230510150351.pdf; (7) skeleton arguments from both parties; (8) Masih Exhibits; (9) the Appellants’ speaking note.
    1. These bundles contained: 1,758 pages in the appeal bundle, which included the whole of the trial bundle and a bundle for the pre-trial review and 523 pages for the supplementary bundle. There was no core bundle of key medical records for the appeal.
    1. No suggested reading list was provided and the Appellants’ skeleton had no appeal bundle page references in it.
  1. CPR 52B PD at para 6.4 requires that only relevant documents are put into the appeal bundle. The Appellants ignored that rule. It was a challenge to sort out what to read before the hearing. The PDF bookmarking of the digital bundles was inadequate and confusing. The bundles sent in just before the appeal were repeats of earlier bundles. In the event Counsel for the Appellants had a different bundle with different pagination.

THE SPEAKING NOTE

The appellant sent a hearing note to the judge the day before the hearing.  This dealt with nearly all the original grounds of appeal, including many where the appellant did not obtain permission.  The judge held that this was an impermissible attempt to put in a supplementary skeleton argument.

Speaking note
    1. On the day of the hearing the Appellants’ counsel sent my clerk (but did not C-efile) a document entitled “speaking note” which was used for his oral submissions. This did not separate out the grounds on which the Appellants had permission to appeal and concentrate on them, but instead dealt with all the original grounds, many of which, as set out above, the Appellants’ had no permission to appeal upon. The Appellants’ skeleton argument was not followed.
    1. The “speaking note” was of little assistance to the Court in this appeal save as to the bundle references therein. It was an attempt to put in a supplementary skeleton argument and to avoid the need for permission to do so.
  1. I consider that the purpose of a skeleton argument is to argue out and fulfil the permitted grounds of appeal. It gives the Respondent notice of the case it has to meet. It informs the Court in advance of the arguments in the appeal. It is not a formality to be abandoned at the hearing by the use of a speaking note.
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