Planning Court judge slams claim with 2,000 pages of “largely irrelevant material”

A Planning Court judge has criticised the “inappropriate manner” in which a claim was put before him, with “six volumes comprising over 2,000 pages of largely irrelevant material”.

In Network Rail Infrastructure Ltd, R (On the Application Of) v The Secretary of State for the Environment, Food And Rural Affairs [2017] EWHC 2259 (Admin) Mr Justice Holgate said he regretted having to make the observations in the case, in which the claimant was seeking to challenge an inspector’s decision that a stopping up order should not be confirmed. The order was intended to enable development of a 142-house scheme.

“I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable,” he said.

“Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin) 74 at paragraphs 6-10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant's skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.”

The judge explained that shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages, and that during the hearing, it was necessary to refer to only fire or six pages outside that core bundle.

“Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission,” he acknowledged.

“But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant's argument to which it does not belong. Nevertheless, [counsel for defendant] acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.”

Mr Justice Holgate added that for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as "significant" under CPR PD 54E, a core bundle of up to about 250 pages was “generally sufficient” to enable the parties' legal arguments to be made.

He continued: “In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.

“Prolix or diffuse ‘grounds’ and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner.”

The judge added that, whichever party was at fault, such practices were likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended.

“Consequently, a disproportionate amount of the Court's finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with,” he said.

“Such practices do not comply with the overriding objective and the duties of the parties (CPR 1.1 to 1.3). They are unacceptable.”

Mr Justice Holgate noted that the Court had wide case management powers to deal with such problems (“see for example CPR 3.1”). “For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without ‘forensic chaff’.”

He added that it was the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly needed to be decided and the precise points upon which each such issue turned.

“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 judge said.

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