[2025] EWHC 1859 (KB)

The Applicant argues that she was treated unfairly as a litigant in person. The particulars of the complaint centre (a) upon 7 late bundles; (b) altered and missing documents (c) refusal to use the Applicant’s hard copy bundle and (d) a requirement to use an electronic bundle, imposed at short notice.

The remainder of the written submissions under this ground then effectively re-argues substantively points about the Judge’s conclusions of fact. I will therefore consider the specific complaints relating to bundling and documentation.

The 7 bundles refer, as I understand it from oral submissions, to one 3-volume bundle provided by the Respondents shortly before trial; an updated version of the same, and what was described as a further supplemental bundle. After making enquiries of the Court, it appears that an electronic copy of the bundle was served by the Respondents by Egress (the electronic transfer system) on the Court a week before trial, on 14 August 2024; following exhibits being filed by the Applicant, an updated bundle was filed, and on 20 August, after concerns were raised by the Applicant as to the contents of the electronic bundle, a further version was uploaded through Egress. An authorities bundle was also served, which cannot be regarded as objectionable.

Save in one respect, the complaint does not relate to the content of the bundles; just that the Applicant was required to navigate the documents in a way that was unfamiliar to her at trial. On this renewal application, I have only been presented with one side of the argument concerning the Applicant’s complaints as to bundling. If the Applicant’s explanation of how events transpired is factually correct, and she was, or perceived that she was, being forced at very short notice to work from an electronic bundle when her case preparation had been undertaken on the hard copy bundle already provided to the Court, I consider she is entitled to feel aggrieved. Whilst it may be that experienced counsel should be able (albeit not without inconvenience) adapt at short notice in dealing with a bundle in a different form, it was not appropriate for a litigant in person to be so required. Given that the Judge’s copy of the 2 volume hard copy bundle provided by the Applicant was retained on file, I have reviewed it during the course of considering this application. On the face of it, it was in perfectly good order, and the Applicant ought to have been allowed to use it, rather than being required to use a different electronic bundle provided by the Respondents shortly before trial.

Whilst therefore I consider it arguable that, in this respect, the Applicant was placed at some inconvenience, I have to consider whether this, in any material way, rendered the hearing unfair. The Applicant, in oral submissions, fairly accepted that the high point of her argument as to real prejudice – other than unnecessary inconvenience - was that the email of 28 January 2020 on which she now relied in respect of Ground 4 had not been included in the electric bundle by the Respondents. It is this omission, the Applicant contended, that meant the Judge did not refer to it in his judgment. She accepted that she did not mention it in evidence, but attributed this to being flustered in having to use the electronic bundle from which this document had been (the Applicant implies) deliberately.

As I have found above, I do not consider that the 28 January 2020 email would have been material to the Judge’s finding on arrears. No prejudice was therefore caused by its absence. Equally pertinently, however, I have looked carefully through the hard copy bundle on the Court file. This email was (contrary to the Applicant’s recollection) not part of the hard copy bundle she had provided to the Court. Its absence may explain the fact that it was also not referred to in the Applicant’s original Grounds of Appeal. It is not right, therefore, that the Judge overlooked the document because of the use of an electronic bundle (and it was not cynically removed from that bundle by the Respondents). It was never part of the bundle prepared by the Applicant and provided to the Court.

The Applicant, in a second supplemental written submission served just before the hearing, raises a further complaint about a solicitor’s letter with which she contends the Respondents tampered. This allegation was based on the fact there existed two versions of an otherwise identical letter relating to sums recovered by the Respondents. This fact was a matter raised at trial, and (irrespective of bundling) both versions were put before the Judge – this can be seen from the hard copy Court file bundle into which the Judge had inserted the second version of the letter. The Judge did not refer to this issue in his judgment: a judge does not have to deal with every point raised. The Judge was entitled to conclude (as do I) that the two versions of the letter were not the result of ‘tampering’, but the fact that two versions were drafted by the solicitors and kept on file, the second version amending the first no doubt following instructions. Both versions were disclosed. This complaint does not amount to a reasonably arguable ground of appeal.