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| 7.1 |
This Chapter contains guidance on the preparation of cases for hearings before judges and Masters. Guidelines about the conduct of trials are given in Chapter 8 of this Guide. When an affidavit or witness statement (or other document) is filed in Chancery Chambers in preparation for a hearing or for any other purpose, it should be accompanied by a written evidence lodgment form as set out in Part 2 of Appendix 4, unless it accompanies an application notice. The preparation of witness statements is covered in Chapter 8.
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| 7.2 |
To ensure court time is used efficiently there must be adequate preparation of cases prior to the hearing. This covers, among other things, the preparation and exchange of skeleton arguments, compiling bundles of documents and dealing out of court with queries which need not concern the court. The parties should also use their best endeavours to agree before any hearing what are the issues or the main issues.
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| 7.3 |
Realistic estimates of the length of time a hearing is expected to take must be given.
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| 7.4 |
In estimating the length of a hearing, sufficient time must be allowed for reading any documents required to be read, the length of the speeches, the time required to examine witnesses (if any), and, if appropriate, an immediate judgment, together with the summary assessment of costs, in cases where that may arise, and any application for permission to appeal.
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| 7.5 |
Except as mentioned below, a written estimate signed by the advocates for all the parties is required in the case of any hearing before a judge. This should be delivered to the Chancery Judges' Listing Officer:
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(1) |
in the case of a trial, on the application to fix the trial date; and
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(2) |
in any other case, as soon as possible after the application notice or case papers have been lodged with the Chancery Judges' Listing Office.
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| 7.6 |
If the estimate given in the application notice for an application to the Interim Applications judge (other than applications by order) or for an application listed before the Companies judge requires to be revised, the revised estimate should be given to the court orally when the application is called on.
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| 7.7 |
The parties must inform the court immediately of any material change in a time estimate. They should keep each other informed of any such change. In any event a further time estimate signed by the advocates to the parties must be lodged when bundles are lodged (see paragraph 7.17 below).
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| 7.8 |
Where estimates prove inaccurate, a hearing may have to be adjourned to a later date and the party responsible for the adjournment is likely to be ordered to pay the costs thrown away.
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| 7.9 |
Bundles of documents for use in court will generally be required for all hearings if more than 25 pages are involved (and may be appropriate even if fewer pages are involved). The efficient preparation of bundles of documents is very important. Where bundles have been properly prepared, the case will be easier to understand and present, and time and costs are likely to be saved. Where documents are copied unnecessarily or bundled incompetently the cost may be disallowed.
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| 7.10 |
Where the provisions of this Guide as to the preparation or delivery of bundles are not followed, the bundle may be rejected by the court or be made the subject of a special costs order.
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| 7.11 |
The claimant or applicant (as the case may be) should begin his or her preparation of the bundles in sufficient time to enable:
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(1) |
the bundles to be agreed with the other parties (so far as possible);
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(2) |
references to the bundles to be used in skeleton arguments; and
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(3) |
the bundles to be delivered to the court at the required time.
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| 7.12 |
The representatives for all parties involved must co-operate in agreeing bundles for use in court. The court and the advocates should all have exactly the same bundles.
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| 7.13 |
When agreeing bundles for trial, the parties should establish through their legal representatives, and record in correspondence, whether the agreement of bundles:
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(1) |
extends no further than agreement of the composition and preparation of the bundles; or
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(2) |
includes agreement that the documents in the bundles are authentic (see rule 32.19); or
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(3) |
includes agreement that the documents may be treated as evidence of the facts stated in them.
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The court will normally expect parties to agree that the documents, or at any rate the great majority of them, may be treated as evidence of the facts stated in them. A party not willing to agree should, when the trial bundles are lodged, write a letter to the court (with a copy to all other parties) stating that it is not willing to agree, and explaining why.
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| 7.14 |
Documents disclosed are in general deemed to be admitted to be authentic under rule 32.19.
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| 7.15 |
Detailed guidelines on the preparation of bundles are set out in Appendix 6, in addition to those in PD 39, Miscellaneous Provisions relating to Hearings, paragraph 3. These should always be followed unless there is good reason not to do so. Particular attention is drawn to the need to consider the preparation of a core bundle.
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| 7.16 |
The general rule is that the claimant/applicant must ensure that one copy of a properly prepared bundle is delivered at the Chancery Judges' Listing Office not less than two clear days (and not more than seven days) before a trial or application by order. However, the court may direct the delivery of bundles earlier than this. Where oral evidence is to be given a second copy of the bundle must be available in court for the use of the witnesses. In the case of bundles to be used on judge's Applications (other than applications by order) the bundles must be delivered to the clerk to the Interim Applications judge by 10am on the morning preceding the day of the hearing unless the court directs otherwise. A bundle delivered to the court should always be in final form and parties should not make a request to alter the bundle after it has been delivered to the court save for good reason.
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| 7.17 |
When lodging the agreed bundles there should also be lodged a further agreed time estimate, together with an agreed reading list and an agreed time estimate in respect of that reading list. The time estimates and reading list must be signed by the advocates for the parties. Failing agreement as to the time estimates or reading list then separate reading lists and time estimates must be submitted signed by the appropriate advocate. See Appendix 7 as to reading lists.
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| 7.18 |
If the case is one which does not require the preparation of a bundle, the advocate should check before the hearing starts that all the documents to which he or she wishes to refer and which ought to have been filed have been filed, and, if possible, indicate to the associate which they are.
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| 7.19 |
Bundles provided for the use of the court should be removed promptly after the conclusion of the hearing unless the court directs otherwise.
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| 7.20 |
The general rule is that for the purpose of all hearings before a judge skeleton arguments should be prepared. The exceptions to this general rule are where the application does not warrant one, for example because it is likely to be short, or where the application is so urgent that preparation of a skeleton argument is impracticable or where an application is ineffective and the order is agreed by all parties (see also paragraphs 26.26 and 26.33).
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| 7.21 |
In the more substantial matters (e.g. trials and applications by order) -- not less than two clear days before the date or first date on which the application or trial is due to come on for hearing.
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| 7.22 |
On judge's applications without notice -- with the papers which the judge is asked to read on the application.
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| 7.23 |
On all other applications to a judge, including interim applications -- as soon as possible and not later than 10am on the day preceding the hearing.
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| 7.24 |
Where a case is liable to be placed in the Warned List, consideration should be given to the preparation of skeleton arguments as soon as the case is placed in the Warned List, so that the skeleton arguments are ready to be delivered to the court on time. Preparation of skeleton arguments should not be left until notice is given that the case is to be heard. Notice may be given that the case is to be heard the next day.
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| 7.25 |
If the name of the judge is not known, or the judge is a Deputy Judge, skeleton arguments should be delivered to the Chancery Judges' Listing Office (Room WG4).
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| 7.26 |
If the name of the judge (other than a Deputy Judge) is known, skeleton arguments should be delivered to the judge's clerk.
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| 7.27 |
Appendix 7 contains guidelines which should be followed on the content of skeleton arguments and chronologies, as well as indices and reading lists.
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| 7.28 |
In most cases before a judge, a list of the persons involved in the facts of the case, a chronology and a list of issues will also be required. The chronology and list of issues should be agreed where possible. The claimant/applicant is responsible for preparing the list of persons involved and the chronology, and he or she should deliver these and his or her list of issues (if required) to the court with his or her skeleton argument.
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| 7.29 |
Unless the court gives any other direction, the parties shall, as between themselves, arrange for the delivery, exchange, or sequential service of skeleton arguments and any list of persons involved, list of issues or chronology. Where there are no such arrangements, all such documents should, where possible, be given to the other parties (if any) in sufficient time before the hearing to enable them properly to consider them.
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| 7.30 |
Failure to lodge skeleton arguments and bundles in accordance with this Guide may result in:
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(1) |
the matter not being heard on the date in question;
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the costs of preparation being disallowed; and
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an adverse costs order being made.
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| 7.31 |
In the Royal Courts of Justice, a log will be maintained of all late skeletons and bundles. The log will regularly be inspected by the Chancellor who will consider such further action as appropriate in relation to any recurrent failure by any chambers, barrister, or solicitors firm to comply with the requirements of the CPR and the Guide.
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| 7.32 |
Unless photocopies of authorities are provided, lists of authorities should be supplied to the usher by 9am on the first day of the hearing. Delivery of skeleton arguments does not relieve a party of his or her duty to deliver his or her list of authorities to the usher by the time stated.
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| 7.33 |
Advocates should exchange lists of authorities by 4pm on the day before the hearing. Any failure in this regard which has the effect of increasing the length of a hearing or of giving rise to delay in the hearing of an application may give rise to an adverse costs order.
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| 7.34 |
Excessive citation of authority should be avoided and practitioners must
have full regard to the matters contained in Practice Direction (citation of
cases: restrictions and rules) [2001] 1 WLR 1001. In particular, the citation of authority should be restricted to the expression of legal principle rather than the
application of such principle to particular facts. Practitioners must also,
when citing authority, seek to ensure that their citations comply with
Practice Direction (Judgments: Neutral Citations) [2002] 1 WLR 346.
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| 7.35 |
The court may indicate the issues on which it wishes to be addressed and those on which it wishes to be addressed only briefly.
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| 7.36 |
Only the key part of any document or authority should be read aloud in court.
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| 7.37 |
At any hearing, handing in written material designed to reduce or remove the need for the court to take a manuscript note will assist the court and save time.
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| 7.38 |
As a timetable for the case will have been fixed at an early stage, applications for adjournment of a trial should only be necessary where there has been a change of circumstances not known when the timetable was fixed.
When to apply
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(1) |
A party who seeks to have a hearing before a judge adjourned must inform the Chancery Judges' Listing Officer of his or her application as soon as possible.
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(2) |
Applications for an adjournment immediately before a hearing begins should be avoided as they take up valuable time which could be used for dealing with effective business and, if successful, they may result in a loss of court time altogether.
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How to apply
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(3) |
If the application is agreed, the parties should, in writing, apply to the Chancery Judges' Listing Officer. The Officer will consult the judge nominated for such matters. The judge may grant the application on conditions and give directions as to a new hearing date. But the judge may direct that the application be listed for a hearing and that all parties attend.
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If the adjournment is opposed the party asking for it should apply to the judge nominated for such matters or to the judge to whom the matter has been allocated. A hearing should be arranged, at the first opportunity, through the Chancery Judges' Listing Office.
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A short summary of the reasons for the adjournment should be delivered to the Chancery Judges' Listing Office, where possible by 12 noon on the day before the application is made. A witness statement or affidavit is not generally required.
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The party requesting an adjournment will, in general, be expected to show that he or she has conducted his or her own case diligently. Parties should take all reasonable steps to ensure that their cases are adequately prepared in sufficient time to enable a hearing before the court to proceed. Likewise, they should take reasonable steps to prepare and serve any document (including any written evidence) required to be served on any other party in sufficient time to enable the other party similarly to be adequately prepared.
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If a failure to take reasonable steps necessitates an adjournment, the court may disallow costs as between solicitor and client, or order the person responsible to pay the costs under rule 48.7, or dismiss the application, or make any other order (including an order for the payment of costs on an indemnity basis).
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A trial date may, on occasion, also be vacated by the Master in the circumstances envisaged in paragraph 6.11.
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| 7.39 |
As in the case of hearings before judges, there must be adequate preparation of cases prior to a hearing before the Masters and Registrars. Parties must ensure when issuing applications to be heard by the Masters and Registrars that time estimates are realistic and make proper allowance for the time taken to read any documents required to be read, give judgment and deal with the summary assessment of costs and any application for permission to appeal. The parties must inform the court and all other parties immediately of any material change in a time estimate. Where estimates prove inaccurate, the hearing may have to be adjourned to a later date and the party responsible for the adjournment is likely to be ordered to pay the costs thrown away.
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| 7.40 |
In the case of a hearing before a Master or Registrar which is listed for one hour or more and in any other hearing before a Master or Registrar such as a case management conference, where a bundle would assist, a bundle should be provided.
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| 7.41 |
Bundles must be provided for a trial or equivalent hearing (such as an account or inquiry or a Part 8 claim with oral evidence) which is listed before a Master or a Registrar. Such bundles must comply with Appendix 6 and contain or be accompanied by a reading list and an estimate of reading time as set out in paragraph 7.17 above.
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| 7.42 |
Bundles provided for the use of the Master and Registrars should be removed promptly after the conclusion of the hearing unless the Master or Registrar directs otherwise.
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| 7.43 |
Delivery of Bundles for hearings before Masters
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(1) |
Bundles should be delivered to Masters' Appointments, Room TM7.09, not less than 2 (and not more than 7) clear working days before the hearing. They should be clearly marked "For hearing on ..... [date] before Master ......... ." They must not be taken to the Registry (Room TM5.04) or the Chancery Judges' Listing Office, and no document required for any hearing must be taken to the RCJ post room. Documents delivered to the wrong place are unlikely to reach the Master in time for the hearing, resulting in probable postponement and the party responsible for the adjournment is likely to be ordered to pay the costs thrown away.
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Detailed guidance on where to deliver documents in Chancery Chambers is at Appendix 8.
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Where no bundle is provided for the use of the Master, but a party intends to rely on the exhibits to a witness statement or affidavit, that party must ensure that those documents are filed with the court in sufficient time to be available to be read by the Master in advance of the hearing. Documents filed less than 10 days before a hearing must be taken to Masters' Appointments, Room TM7.09, for filing and marked "For hearing on ...... [date] before Master ....... ." (Documents filed before that time should be filed in the Registry, Room TM5.04, in the normal way). Exhibits should not be placed in lever arch files but should be fastened securely, for example by treasury tags.
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| 7.44 |
Delivery of bundles for hearings before Bankruptcy Registrars
Bundles should be delivered to Room TM1.10 not less than 2 (and not more than 7) clear working days before the hearing. The should be clearly marked "For hearing on ........[date] before Registrar ..........."
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| 7.45 |
Delivery of bundles for hearings before Companies Court Registrars
Bundles should be delivered to Room TM4.04 not less than 2 (and not more than 7) clear working days before the hearing. They should be clearly marked "For hearing on ........[date] before Registrar .......... ."
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| 7.46 |
Late delivery of bundles for hearings before Masters and Registrars
Parties delivering bundles should note that a log will be kept recording the time of their delivery to Rooms TM1.10, TM4.04 and TM7.09. Any failure to comply with these requirements which results in the postponement of a hearing may render that party liable to pay the costs occasioned by the adjournment.
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Note: Bundles for hearings before a Chancery judge must be delivered to the Chancery Judges' Listing Office (Room WG4).
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Skeleton arguments
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| 7.47 |
Skeleton arguments should normally be prepared in respect of any application before the Master or Registrar of one or more hours' duration and certainly for any trial or similar hearing. They are to be delivered to the same place and at the same time as bundles. The contents of the skeleton argument should be in accordance with Appendix 7.
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| 7.48 |
Where a skeleton argument is required, photocopies of any authorities to be relied upon should be attached to the skeleton argument.
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| 7.49 |
If pursuant to the e-mail protocol for communications with the Chancery Division (paragraph 14.8 below), a skeleton argument is sent electronically, then the provisions of the protocol as well as the time limits set out above must be followed. In particular, any authorities relied on should be delivered in hard form and, where it would assist, be accompanied by a copy of the skeleton argument in hard form.
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| 7.50 |
Failure to deliver skeleton arguments or bundles in accordance with this Guide is likely to result in the matter not being heard on the date fixed, the costs of preparation being disallowed and an adverse costs order being made.
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Compromise or settlement of hearings
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| 7.51 |
When hearings before Masters are compromised or settled, Masters' Appointments (Room TM7.09) should be informed in writing immediately and in any event no later than 4pm on the day preceding the hearing. In the case of substantial hearings involving pre-reading Masters' Appointments should be informed immediately if it appears likely that a hearing will be ineffective, with a request that the Master is immediately notified. Written notification must be given to Room TM1.10 for Bankruptcy hearings and Room TM4.04 for Companies hearings. Failure to notify and consequent waste of court time may result in an adverse costs order being made.
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