“A COMPLETELY UNACCEPTABLE WAY OF PREPARING FOR AN IMPORTANT HEARING”: NON-COMPLIANT AND INCOMPLETE BUNDLES: WITNESS STATEMENTS IMPROPERLY PREPARED

The judgment of HHJ Pearce in Shobeiry v Patel [2023] EWHC 2549 (KB) shows how failing to comply with the rules can lead to major problems in relation to hearings.  Here there was non-compliance with the rules relating to bundles, the basic rules relating to witness statements and a failure to include recent (and allegedly relevant) witness statements in the bundle before the judge.

“This is a completely unacceptable way of preparing for an important hearing.”

THE CASE

The defendant brought an application to vary a default judgment entered against him, arguing that it should have been entered in Arab Emirates Dirham rather than sterling.  The judge noted that the documents prepared for the hearing was far from ideal.

THE JUDGMENT ON THIS ISSUE

1. 1. During the hearing, I had several concerns about issues of procedure and practice. Given the limited available time, it was not possible to explore these in any detail. Indeed, I indicated during the hearing that time was better not wasted with me complaining about these matters, given the developing arguments on the merits of the application and the short time estimate

1. 1. However, since this is a reserved judgment and I have had some time to address all issues, it would be remiss not to mention matters that had a significant affect on the efficient use of court time.

a. The electronic bundle was not properly prepared: parts of the hearing bundle were not capable of being marked using a PDF reader; the bundle did not have proper book marks; but far more importantly, the pagination meant that the printed page number did not match the electronic page numbers. Some 3½ years after COVID-19 and its consequences taught us of the need for the efficient preparation of electronic bundles, the failure to comply with these principles is unacceptable. If any party in a case in the Circuit Commercial Court in Manchester wishes to understand what proper preparation of a bundle involves, they may wish to look at the Circuit Commercial Court Guide 2022 which sets it out. If they do not have access to that^[6], they might read the notice of hearing that goes out in the Business and Property Courts in Manchester, which draws attention to the relevant guides. The failure to comply with either, in a case in which the preparation of the bundle is claimed by the Defendant at £900, is frankly incredible. In the event, I was able to manage the failure by spending time ensuring that the bundle that I was dealing with was so far as possible accessible and usable.

b. The witness statements filed on behalf of the Defendant did not comply with PD 32. Paragraph 17.2^[7] provides:

“At the top right hand corner of the first page there should be clearly written: (1) the party on whose behalf it is made, (2) the initials and surname of the witness, (3) the number of the statement in relation to that witness, (4) the identifying initials and number of each exhibit referred to, and (5) the date the statement was made.”

In order to ensure that the documents could properly be understood, I spent time annotating them with the appropriate details.

c. At the beginning of the hearing, my attention was drawn to the bundle that had been filed by the Defendant, one skeleton argument each from the parties and a bundle of authorities from the Claimant. The Defendant also provided a number of hard copy documents. However, during the course of the hearing I was referred to witness statements that were not in the hearing bundle, including:

i. A statement from the Claimant dated 29 September 2023 (the working day before the hearing). This was CE filed on 2 October 2023. As chance would have it, I discovered that the statement had been filed in the morning of 2 October 2023 and had read it in advance of the hearing. It has not assisted in my decision.

ii. A statement from Ahmed Ali Mohamad Zebida served on behalf of the Defendant. That is referred to in a supplemental skeleton argument on behalf of the Claimant (which itself was apparently uploaded to CE filing at 9.18 am on 2 October 2023 and is annexed to the supplemental skeleton argument). However, the statement of Mr Zebida has still not been CE-filed at the time of handing down this judgment. I was not referred to the supplemental skeleton argument during the hearing and I was wholly unaware of it until revisiting the court file for the purpose of this judgment.

This is a completely unacceptable way of preparing for an important hearing. The Circuit Commercial Court Guide clearly indicates how additional material for a bundle should be dealt with, reflecting the flexibility which is a central feature of the Circuit Commercial Court. In the event, two of the three documents referred to above were not even available to me during the hearing and the third I found almost accidentally. Fortunately, my review of this material (in so far as it has been possible to do it) suggests that this material is of no assistance to me in deciding the issues in the case. That is a surprisingly common feature of material that is provided at the door of court.

1. I would not expect a paying party to meet the cost of material that was not even put in front of me during the hearing. I would also not expect them to have to meet the cost of the inadequate preparation of material that has led to available judicial time being wasted on putting right those failures of preparation.