Leofelis SA and another v Lonsdale Sports Ltd and others [2008] EWCA Civ 640, [2008] All ER (D) 87 (Jul)
Court of Appeal, Civil Division W aller, Keene and Lloyd LJJ 1 July 2008
The Court of Appeal has set out guidance as to the preparation of appeal documentation.
Kenneth Maclean QC and Michael Fealy and Conall Patton (instructed by Lawrence Graham LLP) for the claimants. George Leggatt QC and Jasbir Dhillon (instructed by Reynolds Porter Chamberlain LLP) for the defendants.
The first defendant was the worldwide proprietor of a number of trade marks relating to the Lonsdale brand. The claimants were licensees of aspects of those trade marks. The underlying proceedings concerned several claims for damages, inter alia, for misrepresentation and breaches of contractual warranties in the light of the existence of undisclosed third party rights relating to the trade marks. The defendants responded by alleging breaches on the part of the first claimant, which had thereby given them the right to terminate an agreement. The judge ruled in favour of the claimants and the defendants appealed. The issue arose as to the correct form of documentation for appeals to the Court of Appeal.
LLOYD LJ:
His lordship dealt with the substantive appeal on the facts. He turned to the issue of appeal documentation.
The state of the documentation for the appeals had not been satisfactory, though it was fair to say that some of the difficulties arose from the present requirements of the Practice Direction supplementing Pt 52 of the CPR, a point which it was hoped would be addressed before long by amendment of the Practice Direction. Because there were several separate appeals (though two of them were treated as one) the bundles contained several copies of the judge’s judgment, for example. The difficulties were enhanced in the instant case by the change of position on the part of the appellants, which meant that amended grounds of appeal and new skeleton arguments (on both sides) had to be added to already rather overfilled bundles.
In addition, the correct state of the statements of case was not in all respects discernible because the judge had dealt at trial with the defendants’ application for permission to amend the defence and counterclaim, but the amendments for which he gave permission were not incorporated, after the trial, in a definitive document. The late change of stance by the appellants also made it necessary for the parties to reconsider whether all the necessary documentation was in the appeal bundles, as the parties had been commendably selective in including passages from witness statements and transcripts in the bundles.
His lordship did not intend by those comments to be critical of the parties in their preparation of the bundles, though it was not the first case in which he had found that individual bundles have become difficult to use because they are overloaded, despite para 15.4(4)(e) of the Practice Direction supplementing CPR Pt 52.
He did, however, wish to draw particular attention to the need, especially in complex cases such as the instant, for care and co-operation in the bundling, with a view to economy of documentation. That would be easier if the Practice Direction was amended. In the meanwhile, with cooperation and by seeking directions from the court, some of what might be achieved by a revision of the Practice Direction could be put in place for the convenience of parties and that of the court.
Covenience
In any case where the documentation for the appeal or appeals was likely to be substantial, and especially where several related appeals were to proceed together, it was appropriate for economy of documentation to be agreed, if possible, between the parties, and if necessary for relevant directions to be sought from the court. Parties and their representatives should consider, in cooperation with each other, whether there were ways to make the bundling of documents as convenient as possible for the advocates in the preparation of the appeal as well as for the court hearing the appeal, even in respects which the present Practice Direction might be thought not to allow. If such ways could be agreed, a direction by consent could be sought from the court and dealt with by a deputy Master, or if necessary by a supervising Lord Justice, on paper.
In particular: (i) where the documents which would be referred by each party were in a number of different files a chronological bundle of the documents numbered consecutively should be agreed, albeit that the documents would need to bear their original file numbering. (ii) If collapsing trial files produced sensible numbering and presentation without the addition of further numbering it would be sensible to adopt that process. (iii) As the Practice Direction already provided (on a point which it was unlikely would be relaxed) files should not be over-filled. They had to be carried and used. Use involved reaching for them, opening them and reading the contents conveniently. A good working rule was the 300-page maximum for any one file, set out in para 14 of Appendix 6 to the Chancery Guide. (iv) Skeleton arguments, when referring to documents, should identify the correct bundle and page number.
That guidance had the agreement of the Master of the Rolls. Keene and Waller LJJ agreed.
