England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
COMPANIES COURT
(Mr Justice Etherton)

		The Royal Courts of Justice The Strand London Thursday 13 June 2002

Thursday 13 June 2002

1. LORD JUSTICE CARNWATH: This is an application for permission to appeal against an order made by Etherton J on 12 April 2002. The matter concerns a petition by the Millennium Commission to wind up the company, the Multicultural Media Centre for the Millennium, for which Mr Harte speaks before me. I gave him permission to do so as the sole director of the respondent company. The grounds of the petition were that the company is unable to pay its debts as they fall due, but Mr Harte has raised a number of objections to that and indeed asserts a counterclaim.
2. The matter has a slightly unfortunate history in that previously it came before Rimer J in circumstances where Mr Harte had had very little time to deal with the Commission's evidence. The Court of Appeal subsequently held that the company had not had a fair hearing and so the matter was set back to be dealt with again.
3. On 4 January 2002 Mr Registrar Simmonds gave certain directions relating to the exchange of evidence. His order set out a timetable for evidence to be filed and served by the petitioner, by Mr Harte, and for any evidence in reply, and then said that the matter was to be adjourned to the judge thereafter.
4. Evidence was exchanged. The Commission put in supplementary evidence. Mr Harte filed some bundles of evidence which he had been assisted in preparing, I think by the RCJ Citizens Advice Bureau, and the petitioner then indicated that it was not going to serve any further evidence.
5. However, when the matter came before Etherton J, it emerged that the bundles for the hearing had not been filed in the time required by the rules. The practice direction supplementing CPR Part 39 says that unless the court otherwise orders, the claimant must file the trial bundles not less than three days before the start of the trial. That had not been done by the Commission, whose duty it was to prepare the bundles. In the circumstances, and taking into account all the matters which the judge set out in his judgment, he decided that the hearing could not proceed at that stage, and it was adjourned to the first open date after 38 days. He also gave directions for the company to respond to the petitioner's bundles, indicating what further documents, if any, it required within a defined timescale. The judge also ordered that the costs of and incidental to the adjournment should be costs in the petition.
6. As I understand it, he took into account that, although the Commission was primarily responsible for preparing the bundles for the hearing and had failed to comply with the rules, it had not been assisted by Mr Harte. He referred in particular to letters written to Mr Harte in March 2002, in which the Commission's solicitors had made clear that they had prepared the bundles and were looking for agreement as to the contents. They were also complaining that Mr Harte's evidence included a lot of documents which were duplication.
7. Before me, Mr Harte complains that the judge was misled about the position. He says that the judge was not informed of the order made by the Registrar. He also says that the Commission's solicitors, in a letter of 11 April 2002, misled the court because in that letter they referred to having filed the hearing bundles and say that they were informed by the court office "that the Company's representative had already filed two bundles." They continue:

"The Company's intention to file a separate set of bundles was not communicated to us, the Company has not informed us that it has lodged bundles with the court and we do not know their content."

8. Mr Harte, as I understand it, says that in the first place the court should have been informed of Mr Registrar Simmonds' order, under which there was nothing more to be done following the exchange of evidence before the case went to court, and, secondly, the implication of that letter of 11 April that the Commission knew nothing about the bundles filed by Mr Harte was untrue.
9. It could be said that this is academic as far as the main aspect of the order is concerned, because Mr Harte has (in a sense) won because the matter was adjourned. But his real complaint, as I understand it, goes to the question of costs, because the costs were ordered to be costs in the petition rather than an order being made against the Commission which had failed to comply with the rules. As I understand it, these points to which I have referred are material to that.
10. However, having heard Mr Harte, I think there is unfortunately a misunderstanding about two separate matters. The Registrar was concerned with the question of exchange of evidence. As far as I can see, the Registrar's order was fully complied with once the Commission, as petitioner, had indicated that it did not want to serve any further evidence in reply to Mr Harte's evidence. That is a separate matter from the ordinary requirement of any case under the rules for the preparation of bundles for the court, the bundles being the documents and evidence as to matters which need to be before the court, put into a manageable indexed form so that they can be used at the trial.
11. That was not something covered by Mr Registrar Simmonds' orders, and would not normally be so covered because it is covered by the rules. As the Commission's solicitors made clear in their letter of 20 March 2002, it was their duty to do that but it is equally the duty of the other parties to cooperate so that it may be done in an orderly way. So far as the letter of 11 April is concerned, I do not read that as intended in any way to mislead the court. Where I think the confusion has come is that the court officials assumed that the material which had been put before them by Mr Harte was intended to be bundles for the hearing, as opposed to simply evidence, and they communicated that to the Commission which said, understandably, that it was not aware that Mr Harte was undertaking the task of preparing the court bundles. It was, of course, aware that he had filed evidence but not that he was apparently preparing the court bundles.
12. However that may be, I have no doubt that Etherton J was fully aware of the position. His order was entirely understandable in the circumstances, particularly against the background of this case. So far as the costs were concerned, that was very much a matter for his discretion. Certainly I see nothing wrong in principle in his taking into account the attempts by the Commission to secure the cooperation of Mr Heart in preparing bundles and the lack of any effective response to that. I understand, having heard Mr Harte, that that may have been as a result of his misunderstanding of the position as I have outlined it; but, nonetheless, the letters sent by the company, particularly the letter of 20 March, seem to me perfectly clear as to what was required and the judge was entitled to take into account the failure to respond to that.
13. For those reasons I dismiss this application for permission to appeal.
ORDER: Application refused