The High Court has sent a blunt message to litigators that excessive trial bundles are unnecessary and counter-productive.
In observations made as part of an administrative court ruling, Mr Justice Holgate said he regretted that he was forced to discuss the ‘inappropriate manner’ the claim was presented.
Holgate said the claimant’s firm, Bond Dickinson LLP, had prepared six volumes comprising 2,000 pages of ‘largely irrelevant’ material. The skeleton argument in Network Rail Infrastructure Ltd, R v The Secretary of State for the Environment, Food and Rural Affairs was ‘long, diffuse and often confused’, said the judge.
Holgate stressed that the court has wide case management powers and is prepared to make costs orders even where an application has been successful. The court may also consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing.
It may also direct the production of a core bundle or limit the length of a skeleton, so that arguments are set out without what Holgate called ‘forensic chaff’.
He added: ‘It is the responsibility of the parties to help the court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. The principles in the CPR for dealing with the costs of litigation provide further tools by which the court may deal with the inappropriate conduct of litigation, so that a party who incurs costs in that manner has to bear them.’
The claim itself was a judicial review application to challenge the decision of a government inspector to enable development of 142 houses in Cumbria.
In the event, the challenge succeeded on one point alluded to in two paragraphs of the skeleton. The point itself was ‘buried’ within the discussion of one ground of the claim, Holgate said.
The judge said a core bundle of 250 pages should be sufficient to allow parties’ legal arguments to be made.
He explained that ‘prolix or diffuse’ grounds and skeletons impede the efficient handling of business in the planning court and are likely to result in more time being spent in pre-reading material, extending the hearing time and the time needed to prepare a judgment.
Several rulings in recent years have called for litigants to shorten their skeleton arguments, one of the most memorable coming from Lord Justice Jackson, who bemoaned ‘35 pages of rambling prolixity’ which made it difficult to track down the relevant facts, issues and arguments.’