Essential Documents and Covid-19
May 19, 2020
The prospect of remote hearings will, by now, be familiar to any reader who came to this page intentionally. Equally familiar, at least to those practicing out of the North West, will be the helpful guidance on remote hearings issued by the Business and Property Court Judges in Manchester where, at Paragraph 7, it is said:
“Unless otherwise proposed or directed, electronic bundles should contain only the documents which are essential for the hearing …”
In the case of Re TPS Investments (UK) Ltd  EWHC 1135 (Ch) HHJ Hodge QC, sitting as a Judge of the High Court, provided further guidance on the meaning of ‘essential’, and an example of how it should be applied in practice in short applications.
HHJ Hodge QC held that the word “essential” was ‘chosen advisedly, in preference to alternative formulations, such as “that which is reasonably required”…’. It should be given its ordinary dictionary meaning of “indispensable or important in the highest degree“.
It is only documents that pass this test that should be included in electronic bundles.
The Learned Judge considered that ensuring this ‘… is probably best achieved by engaging the advocate who will present the application in court at an early stage of the process of preparing for the hearing’ as it is the advocate who will know how they intend to present the application. He therefore suggested briefing advocates in good time, and well in advance of the electronic bundle being finalised.
HHJ Hodge QC also emphasised the importance in any electronic bundle of:
- A searchable contents tab; and
- Sequential page numbering.
The Practical Example
The application before the Court was for an extension of an administrator’s term of office. Whilst it had previously been contentious, the relevant interested parties had, on this occasion, consented to the extension sought.
In these circumstances, the Learned Judge held that the essential documents were:
- The application notice;
- The witness statement;
- The exhibit, which included the latest progress report and correspondence demonstrating the present position; and
- A supplemental statement exhibiting the consent from the relevant interested parties.
The witness statements and exhibits from previous applications, setting out the position as at the previous extensions, were not necessary.
The guidance issued by the Business and Property Court Judges in Manchester is essential reading for any practitioner using this Court, and helpful to all for the good practice it sets out. A full copy can be found here.
The Learned Judge suggested briefing the advocate in advance of compiling the electronic bundle to determine what was ‘essential’. I would go one step further – good practice must now (to the extent that it was not before) be to consider what is ‘essential’ when drafting the statement in support of the application. Certainly, the days when a deponent can refer a reader to a previous statement for the full history are gone; a compliant reader will no longer have it.