Practice and procedure update
Civil practice and procedure update: rumbles with court bundles
Jocelyn Anderson highlights the important role trial bundles play in the court’s consideration and determination of hearings, and reminds practitioners to pay close attention when preparing them.
About the author
Jocelyn Anderson is a freelance legal writer.
It is the stuff of nightmares: your carefully prepared case finally reaches court; the experts have pronounced; elusive documents have been traced; and counsel is primed. Your client sits nervously in court, awaiting the operation of justice. Then, in the first hour, the trial judge adjourns the matter – with costs – because they cannot use the bundle. This is broadly what happened in PM Project Services Ltd v Dairy Crest Ltd [2016] EWHC 1235 (TCC). The PM case reflects a significant recent trend throughout the civil and family courts to penalise poor bundle preparation with adjournments and costs: a trend which you dismiss at your peril.
PM had applied for summary judgment on three separate claims totalling 15 separate invoices. The second and third claims, for payment on 14 of the invoices, were supported by the witness statement of a Mr Dean. There were over 750 pages of exhibits to this witness statement; however, the pages had been renumbered when the bundle was prepared, with the result that, in his statement, Mr Dean was referring to exhibit page numbers which had now disappeared. By deduction and the use of an index that had been partly camouflaged, the hearing judge, Edwards-Stuart J, was able to deduce where a relevant exhibit ought to be; unfortunately, as further documents had been added to the bundle and had knocked the page numbers further out of sequence, even the use of deduction did not help much.
The long and the short of it was that anyone reading Mr Dean’s witness statement was faced with a lengthy - and exasperating - search for the documents to which he referred. Three hours’ pre-reading time had been allowed; however, after two hours Edwards-Stuart J abandoned reading the papers and adjourned the second and the third claims so that the correct bundle references could be inserted. The costs of this exercise, and the costs thrown away by the adjournment, were to be borne by PM.
While this was a Technology and Construction Court case, there have been similar cases in other divisions and in the Supreme Court. Judges’ tolerance for poorly prepared bundles is lower than ever before, with costly results for the defaulting parties. How to prepare a hearing or trial bundle is no longer merely a ‘housekeeping’ matter: getting the bundle right is crucial to your client’s case.
The rationale behind this climate is the perception that the pressure on court resources is intense, and badly prepared bundles needlessly makes it worse. In Seagrove v Sullivan [2014] EWHC 4110 (Fam) (a Trusts of Land and Appointment of Trustees Act 1996 claim involving approximately 3,500 pages of documents, with one bundle ‘containing no less than 32 authorities’ (para 37)) Holman J (sitting throughout in public) commented:
… the courts have a duty to ensure that an appropriate, but only an appropriate, share of the court’s resources are allocated to any one case... judges have to deal with an enormous number of very difficult cases involving the future of vulnerable children, and the care and treatment of sick people, including mentally incapacitated people. It is simply not tolerable that we go on and on affording to people like [the parties] an estimated eight days of court time on a dispute that ultimately is measured in something not exceeding £500,000 (para 48).
[I]t is well worth taking some time to review your bundle preparation practice. The starting points remain PD 39A and the accompanying PD 27A
The specific problem here was that the bundles were excessive in size and scope - another very frequent bugbear - but the warning note about the court’s resources is one which all bundle compilers should heed. If your bundle is illegible and/or impossible to navigate and/or full of duplicates or irrelevant documents, this has a knock-on effect on other court users which will not be looked on favourably.
In this unforgiving environment, it is well worth taking some time to review your bundle preparation practice. The starting points remain Practice Direction (PD) 39A and the accompanying PD 27A, but these merely set out the bare bones of the requirements rather than giving practical guidance. Observing the rules at PD 39A will not, in themselves, absolve you from criticism because they do not help with, for example, practical queries about pagination over multiple files, or whether duplicate documents should be included or how to select documents for the bundle in the first place.
More specific assistance can be found in Chancery Guide 2016 paras 21.34–21.72, which set out detailed principles of bundle compilation.1 This section is a good general guide for all cases, and not just those in the Chancery Division.2 It includes sound basic rules on how to compile and internally organise bundles. There is invaluable guidance on, among other matters, how to avoid putting multiple copies of the same document in the bundle, what to do about old pleadings which have since been amended (and other redundant documents), and when and how to transcribe documents. It also emphasises that to get a manageable bundle, a high degree of co-operation between the parties is vital.
In fact, the current strong preference for stripped-down bundles throughout the court system means that if you do not liaise and communicate with the other side about the contents of bundles from an early stage, you are leaving your firm - and your client - open to criticism. The issues need to be identified clearly and agreed between you, and the scope and time estimate of the hearing kept well in mind. For example, there is no need to produce all of the background documentation for an interim hearing on a single point of law or of case management, although you will still encounter cautious lawyers who will resist your attempts to cut down the bundle. Litigants in person may also find it difficult to understand why a judge is not interested in every document they have produced.
If there is real and irresolvable conflict, the matter may have to go back before a judge for a decision. For this reason, it is well worth contacting the other side with your proposed index before any pre-trial case management conference, so that any disputes can be dealt with then rather than at a separate hearing.
Guildhall Chambers has produced an excellent practical guide to preparing bundles.3 This document deals with some of the more difficult hands-on decisions, such as how to determine what should go into the bundle, what to do about e-mail chains, when to transcribe documents, and even whether all of the lever-arch files in your bundle should be the same colour (the answer is ‘no’ : colour-coded files are easier to manage). The ‘raison d’etre of bundles’ (as the author points out) ‘is that they should be user-friendly … think how they will be used - and structure them accordingly’ (page 5).
The difficulties encountered by the end-user of a bad bundle have been magnificently, if wryly, summarised by in Sedley J (as he then was): the laws of documents.4The 12 laws begin with the proposition that: ‘Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical’, and go, as it were, downhill from there. The laws are worth referring to as a good, basic reminder of what not to do when putting bundles together and of the needless aggravation you can provoke - unintentionally - in your trial judge. As a broad rule of thumb, if you break Sedley J’s laws of documents you are on the right track.
In every case, look at the bundle with fresh eyes and ask the following questions:
- Can I navigate my way through the bundle without difficulty?
- Can I work out why the documents have been placed in this particular order?
- Are the page numbers legible?
- Can I actually make out what is in the photographs?
If you have difficulties with any of the answers, the chances are that the judge, the advocates and the witnesses will too. It is vital to flag up any problems and to deal with them before lodging the bundles.
You will have seen by now that although badly prepared bundles can be expensive for your client, it is also costly to prepare them well. Liaising with the other side, refining the issues and agreeing the essential documents takes up fee-earner time.
The net effect of this practice is that the burden of the expense has been shifted from the court system to the claimant and, given the costs budgeting rules, not all of that expense is likely to be recoverable. How that will play out in future costs assessments remains to be seen.
- Available at: http://tinyurl.com/nmopog6
- However, practitioners are warned that the family court has expressly disapproved of the use of core bundles (see J v J [2014] EWHC 3654 (Fam))
- Available at: http://tinyurl.com/jsk4ep9
- Available at: http://tinyurl.com/jj4uqvm