ANOTHER CASE INVOLVING BUNDLES: DIFFERENCES IN PAGINATION AND OTHER MISHAPS MEANT THAT A DECISION WAS UNFAIR AND THERE WAS AN ERROR OF LAW
In RP v Barnsley Metropolitan District Council [2025] UKUT 46 (AAC) Edward Jacobs, Upper Tribunal Judge, found that the errors with bundles at a First-Tier Tribunal led to unfairness and amounted to a an error of law.
“There were, as I now know, three versions of the bundle. I have no reason to doubt her description of the effect that that had on her presentation of her case. I consider that what she has described was an unfairness in the proceedings and that was an error of law.”
THE CASE
The appellant had represented her sons in a hearing before the First-Tier Tribunal in a case relating to the Education Health and Care Plans for her two sons. Her bundle at the hearing differed to that held by the tribunal. She appealed the decision. One of the grounds of appeal was that there had been unfairness because her bundle had been paginated differently to that relied upon by the tribunal members.
THE JUDGMENT ON THE BUNDLE
On appeal the judge found that not only were there differences in pagination there may have been differences in content. This amounted to unfairness.
“In her grounds of appeal, RP wrote:
My bundles had different pagination to the LA and the Tribunal panel
It became apparent in the final hearing that my bundle was paginated differently to the bundles the panel members and the LA were working from. This made it extremely difficult for me to navigate and at numerous points throughout the hearing put me under pressure not only to ask questions, but to answer them as well. I feel this put me at a significant disadvantage at the final hearing. this is demonstrated by the point raised below relating to … attainment and the page reference in the order not matching up to the page number in my bundle (page 131 in my bundle and page 136 in the other bundles, as referred to in the final order).
- As I said to RP, differences like this are an ‘occupational hazard’ in tribunal and court proceedings. I would expect tribunals to check when they first refer to a bundle whether there are differences in the page numbering. It is usually identified early on and, once identified, becomes little more than an irritation. As Judge McCarthy said in his grant of permission:
- Differences in pagination would not usually undermine fairness; the Tribunal is well aware that printed copies of a bundle often are paginated after the index while electronic versions are paginated from the start of the index. Accommodation for such discrepancies is usually made by giving both page numbers. Usually I would expect the panel to have proceeded in this way, but the allegation of unfair conduct means this may have to be investigated further.
- I would normally have agreed with what the judge expected to happen; that was my provisional view before the hearing of these appeals. It was only then that I realised this was not just a difference between the paper copy and the electronic version. Ms Dyson told me that she was working from an electronic version, but her pagination also differed from the panel’s electronic version.
- I do not have to decide whether or not this issue and the confusion it caused affected the outcome of the appeal. A mistake of law has to be material, but in the case of a procedural irregularity the test is whether it was ‘capable of making a material difference to the outcome or the fairness of the proceedings‘: see Brooke LJ in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9(vi)]. I have had the benefit of seeing RP at the hearing before me. She was articulate, and she was knowledgeable about safeguarding, which was an important factor for her in the placement of her children. But she was not used to legal proceedings and there were, as I now know, three versions of the bundle. I have no reason to doubt her description of the effect that that had on her presentation of her case. I consider that what she has described was an unfairness in the proceedings and that was an error of law.”