Millennium Commission v Multicultural Media Centre For The Millennium

Directions governing the exchange of evidence do not replace the separate procedural requirement to prepare and file manageable, indexed hearing bundles. Under Civil Procedure Rules 1998 Part 39 and its practice direction, the petitioner bears primary responsibility for filing trial bundles, but the other parties must cooperate in their preparation. The decision whether to adjourn a hearing and how to allocate the resulting costs is discretionary. In exercising that discretion, the court may consider both a party’s failure to comply with the bundle requirement and the other party’s failure to cooperate effectively. An adjournment and costs order will stand where the judge understood the relevant circumstances and acted within that discretion.

The Millennium Commission petitioned to wind up the defendant company on the ground that it could not pay its debts as they fell due. Etherton J adjourned the hearing because the required trial bundles had not been filed in time, directed further procedural steps, and ordered the costs of and incidental to the adjournment to be costs in the petition.

The company, represented by its sole director, sought permission to appeal. It argued that the judge had been misled about an earlier order concerning exchange of evidence and about the bundles filed by the company. It also challenged the costs order. The central issues were whether the earlier directions covered preparation of hearing bundles, whether the adjournment was justified, and whether the costs exercise involved any error of principle.

1. Application refused. Permission to appeal was refused because Etherton J was fully aware of the relevant circumstances and his order was entirely understandable.
2. The Registrar’s order dealt with the exchange of evidence. It had been complied with when the Commission indicated that it would serve no further evidence in reply. That was separate from the ordinary procedural requirement to prepare hearing bundles. The requirement was governed by Civil Procedure Rules 1998 Part 39 and the supplementary practice direction.
3. Unless the court orders otherwise, the claimant must file trial bundles at least three days before trial. Although the petitioner had primary responsibility for preparing the bundles, the other parties had an equal duty to cooperate so that the bundles could be prepared in an orderly and usable form.
4. The court rejected the suggestion that the Commission’s letter had deliberately misled the judge. The confusion arose because material filed by the company had been understood by court officials to be evidence rather than hearing bundles, and the Commission had not known that the company intended to undertake preparation of the bundles.
5. The costs of the adjournment were a matter for the judge’s discretion. There was no error of principle in taking into account the Commission’s attempts to secure the company’s cooperation and the absence of an effective response, even if the company’s failure had resulted from a misunderstanding of the procedural position.

The order was therefore left undisturbed and the application was refused.

• Court of Appeal (Civil Division): Lord Justice Carnwath refused permission to appeal and left the order below undisturbed.
• High Court, Chancery Division, Companies Court: Etherton J adjourned the winding-up petition, gave further directions, and ordered the costs of and incidental to the adjournment to be costs in the petition.