SCRIBES WEST Ltd and RELSA ANSTALT and Anor (No 1) First
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mance,Lord Justice Brooke |
| Judgment Date | 29 June 2004 |
| Neutral Citation | [2004] EWCA Civ 835 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2003/2010 CCRTF |
| Date | 29 June 2004 |
[2004] EWCA Civ 835
Lord Justice Brooke
Vice-President of The Court of Appeal (Civil Division)
Lord Justice Mance and
Lord Justice Dyson
Case No: B2/2003/2010 CCRTF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Judge Mayer
Royal Courts of Justice
Strand,
London, WC2A 2LL
Tom Weekes (instructed by Mischcon de Reya) for the Appellant
Andrew Bruce (instructed by Richards Butler) for the Respondent
Index
Part No Para No
| 1 | Introductory | 1 |
| 2 | Grounds of Appeal | 2 |
| 3 | The request for reconsideration of a decision on permission to appeal | 4 |
| 4 | Notice to respondent of the hearing by an appeal court of an application for permission to appeal | 5 |
| 5 | The appeal bundle | 7 |
| 6 | The core bundle in the Court of Appeal | 20 |
| 7 | Skeleton arguments | 21 |
| 8 | Bundles of authorities in the Court of Appeal | 28 |
| 9 | The papers for the Court of Appeal | 31 |
Introductory
We heard argument this morning on a jurisdictional issue in connection with this appeal, and we will deliver judgment on that issue in due course. In the meantime this case provides an opportunity to give notice of and explain the very substantial changes that have been made to the Practice Direction to CPR Part 52. These changes will come into effect tomorrow, 30th June 2004. The full text of the revised Practice Direction has been published on the website of the Department of Constitutional Affairs (www.dca.gov.uk). It will also be available in the second edition of the Manual of Civil Appeals, which is to be published shortly. Every judge exercising civil jurisdiction and everyone who practises or appears in an appeal court will need to be aware of the new requirements as soon as they take effect tomorrow. I am therefore taking this opportunity to explain the most important of the changes that have been made. I hope that this judgment will be circulated widely and that it will receive widespread publicity.
Grounds of Appeal
As is well known, an appeal court will only allow an appeal where the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court ( CPR 52.11(3)). The original Practice Direction ("PD") to Part 52 provided that the grounds of appeal should set out clearly the reasons why CPR 52.11(3) (a) or (b) were said to apply. This requirement is repeated in para 3.2(1) of the revised PD, but it also contains in para 3.2(2) a new requirement that the grounds of appeal should –
"specify, in respect of each ground, whether the ground raises an appeal on a point of law or is an appeal against a finding of fact."
This distinction is important when the jurisdiction of the relevant appeal court is limited to an appeal on a point of law. Guidance on the distinction between fact and law will be found in standard textbooks and in the second edition of the Civil Appeals Manual, due to be published shortly.
The request for reconsideration of a decision on permission to appeal
Para 4.14A contains an entirely new requirement in those cases where an appellant, who is represented, makes a request for a decision to be reconsidered at an oral hearing. It obliges the appellant's advocate, at least four days before the hearing, to inform the court and the respondent in a brief written statement of the points which he proposes to raise at the hearing; to set out his reasons why permission should be granted notwithstanding the reasons given for the refusal of permission; and to confirm, where applicable, that the requirements of paragraph 4.17 of the PD (which relates to appellants funded by the Legal Service Commission) have been complied with.
Notice to respondent of the hearing by an appeal court of an application for permission to appeal
In Jolly v Jay [2002] EWCA Civ 277 at [41] this court invited the appropriate authorities to consider whether the practice adopted by certain appeal courts of notifying respondents of the time fixed for the hearing of an application for permission to appeal should be made uniform, because it was evident that different appeal courts followed different practices. Paras 4.15 and 4.16 of the revised PD represent the response to that invitation:
"4.15 Notice of a permission hearing will be given to the respondent but he is not required to attend unless the court requests him to do so.
4.16 If the court requests the respondent's attendance at the permission hearing, the appellant must supply the respondent with a copy of the appeal bundle (see paragraph 5.6A) within 7 days of being notified of the request, or such other period as the court may direct. The costs of providing that bundle shall be borne by the appellant initially, but will form part of the costs of the permission application."
No change has been made to PD paras 4.22—4.24, which contain the regime for deciding whether a respondent is to be allowed any costs in connection with his involvement in such an application.
The change is designed to achieve consistency of practice throughout the country. There is a consequential revision to PD para 4.16, which now provides that an appellant will only be bound to bear the initial costs of providing a copy of the appeal bundle in those cases in which the court requests the respondent's attendance at the permission hearing.
The appeal bundle
Major changes have now been made to the arrangements for preparing bundles for an appeal court. Some of these changes have been made in respect of all appeal courts, and there are also further changes which apply only to practice in the Court of Appeal. Experience showed that the former arrangements led to a proliferation of bundles (often anonymous in appearance) at different stages of the appeal process, together with widespread ignorance of provisions (such as para 5.8 of the original PD) which were designed to assist the court but did not succeed in their object.
Under the arrangements in the revised PD, para 5.6 now provides a concise statement of the relatively few documents, as distinct from the appeal bundle, which must be filed in connection with every appeal (except on an appeal in the county court or High Court which relates to a claim allocated to the small claims track (para 5.6(1)). Para 5.6(2) of the revised PD mirrors paras 5.6(1) -(6) of the original PD, although practitioners must take note of some slight changes in the text. Two additional copies of the appellant's notice (as opposed to one) are now required for the appeal court (see para 5.6(2) (a) of the revised PD).
These documents will be lodged with the papers in the court file. Para 5.6A of the revised PD introduces the new concept of an "appeal bundle". This is to be contrasted with the phrase "a bundle of documents in support of the appeal" which appeared in para 5.6(7) of the original PD. Practitioners must carefully check the list contained in the new para 5.6A. It mirrors the list which appeared in the original para 5.6(7) (a) —(k), but there are some differences, and the new arrangements are designed to make things simpler to follow.
For example, instead of the quite complicated opening text in the original para 5.6(7), which was designed to limit the cost of preparing documents for an appeal but was regularly ignored by inexperienced practitioners and many litigants in person, the new text is designed to make the same point clearly and concisely. At the end of a list of the formal documents which must be included in the appeal bundle (see para 5.6A(1) (a) -(k)), para 5.6A(1) (l) requires the inclusion of:
"any other documents which the appellant reasonably considers necessary to enable the appeal court to reach its decision on the hearing of the application of appeal." (Emphasis added).
The point is now reinforced by para 5.6A(2) :
"All documents that are extraneous to the issues to be considered on the application or the appeal must be excluded. The appeal bundle may include affidavits, witness statements, summaries, experts' reports and exhibits but only where these are directly relevant to the subject-matter of the appeal." (Emphasis added)
And by para 5.6A(3)
"Where the appellant is represented, the appeal bundle must contain a certificate signed by his solicitor, counsel or other representative to the effect that he has read and understood para (2) above and that the composition of the appeal bundle complies with it."
This certificate will act as an important reassurance to the court (and to the lay litigants who may have to pay for the appeal process) that the bad old days of unthinkingly copying the trial bundle are over, and that only those documents that are directly relevant to the subject-matter of the appeal will have been included in an appeal bundle. If a party wishes to bring the trial bundle to the appeal court just in case there is any document in it which turns out to be important, then of course he may do so, but the contents of the appeal bundle must be limited, when it is first prepared, to the documents identified in para 5.6A(1).
Para 5.7 of the PD, which places a duty on an appellant to indicate which documents contained in the lists in paras 5.6 and 5.6A have not yet been filed, and the reasons why they are not currently available, now contains a new requirement:
"The appellant must then provide a reasonable estimate of when the missing document or documents can be filed and file them as soon as reasonably possible."
Para 5.8...
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