Preparation of Court Bundle in Licensing Appeals
I am conscious that what follows may be thought patronising by a number of readers, because the observations I make are trite; and, in all conscience, it should not be necessary to spell them out in a printed article. On the other hand, the bad habits I am seeking to eradicate by publicising them are so widespread, and do such damage to the prospects of winning – and the risk of causing offence is so heavily counter-balanced by the possibility that some good might come of it – that I feel it is worth braving the disdain to which I am likely to be subject.
Because the majority of bundles I have to work with are inadequately prepared, I suspect that the task (a tedious one) is being delegated to too-junior and inexperienced hands. In one Court of Appeal judicial review in which I was briefed, I undertook the preparation of the court bundle myself, in order to avoid the same embarrassment I experienced in the Administrative Court – where a substantial number of pages in the lodged bundles had been photocopied at an angle, cutting off the bottom right-hand quadrant of each page. Needless to say, the judge did not come into court on my side.
Here, then, are some of the problems I frequently encounter with bundles sent to me; each one of which can impact adversely on the chances of winning, no matter what the overall merits. Cumulatively, they are disastrous.
Overstuffed ring binders
Whoever sits back with a sense of achievement at ‘having managed to get everything into one bundle’ is in need of a serious talking-to. A bundle so stuffed that it is time consuming, (and often rips the hole-punches in the process) to work the pages up round the rings in order to get to the second half of it… is not user-friendly. Making a bundle easy for the judge to read is the key to the whole business. The written material should be split into as many bundles as are necessary to achieve this. Using different-coloured bundles, for easy identification, can be very effective.
My irritation at trying to write notes in the small margins available to me on bundles printed on both sides of the page sometimes has me loathing my client so much I wish I were on the other side.
Lack of pagination
Page numbers should be large, bold, and easy to read. Most automated pagination (i.e. by photocopiers) is far too small and should be avoided. I always put page numbers on the bottom right-hand side, in black felt-tip pen, manually. It does not matter in the least that such pagination is not pretty: it is easy to see.
Many compilers of bundles believe that comprehensive ‘tabbing’ obviates the need for pagination: it doesn’t. Sometimes the contents of a single tab are voluminous – for example, a local authority agenda that includes the licensing officer’s report, all representations for and against, other correspondence, and maybe maps and plans too. Tabs within tabs should be considered, and sub-indexing is essential. The quality of tabs can make the difference between a bundle that has the reader saying, ‘They know what they are doing’, and a bundle that looks amateur. I have a particular aversion to coloured cardboard tabs, with manuscript numbers or letters written on them. Thin, floppy plastic tabs are hideous.
Order of material
The ideal court bundle is one that can be picked up and read, cover to cover, telling the story in a logical and chronological order. That is not always possible, of course, but as near as possible should be the aim. It is irritating to start reading a bundle and find it makes no immediate sense, or instantly requires the reader to turn back and forth between the pages in order to understand what is being said. Conversely, a bundle that has the judge quickly thinking (I put it no higher) that he/she knows what the case is all about is a joy to read.
The compiled bundles should cross-reference (by bundle number, colour, tab, and page number) each and every document mentioned. Not only does it facilitate reading, but it also makes it easy to write a skeleton that references the relevant material.
When, as mentioned above, a particular tab contains a large number of pages, a sub-index to that tab should identify the different sections or topics – even if they are given their own sub-tabs. Directing the judge’s way, quickly and with the least amount of fuss, to what one wants her/him to read makes for a smooth presentation, and is much appreciated on the bench.
A bad licensing appeal will usually be lost, just as a good one should be successful. But the difference between winning or losing a borderline licensing appeal is often in a well presented versus a badly presented court bundle.
(First Published in Solicitors’ Journal, 2015)
Post Script: March 2018
Neither the court bundle nor the judge’s reading lists for the substantive hearing of a judicial review should be assumed to be identical to those lodged with the application for permission. In a recent judicial review in which I was involved, the judge was (justifiably) angry that he had not been given an up-to-date reading list relevant to, and cross-referenced to, the agreed court bundle – which differed significantly from the bundles lodged by separate parties on their applications for permission.