ELECTRONIC BUNDLES, WITNESSES AND THE TRIAL PROCESS: A WARNING FROM THE COURTS: SORT THIS OUT OR THE COURT WILL GO BACK TO PAPER BUNDLES

There is a warning to anyone considering the use of electronic bundles at trial contained in the judgment of Mr Justice Birss in Invista Textiles (UK) Ltd & Anor v Botes & Ors [2019] EWHC 58 (Ch).

THE CASE

The judge was giving judgment in a case where witnesses had been cross-examined using electronic bundles.  The  bundles had clearly caused major problems in the cross-examination of witnesses.

THE JUDGMENT

“A general practical point
  1. A feature of the cross-examination of all the witnesses was the use throughout the trial of an electronic document presentation system instead of a paper bundle. Having evidence available in an electronic form is very useful but can be done much more simply than this. I was not convinced the presentation system was helpful or worth the trouble it involved. Real flaws in the approach to cross-examination based on documents took place. For one thing the system often had an appreciable delay, not always obvious to the cross-examiner, which meant the witness and the cross-examiner were at cross-purposes. More significant was the way witnesses were given a single screen on which a single page being referred to was displayed in front of them. The display would frequently flash to a different page, often without warning, and often before the witness had a chance to digest it properly or understand its context. I am sure the witnesses did not always read the text as carefully as they would have done if they had some personal autonomy which allowed them some control of the text in front of them. That is the kind of autonomy a paper bundle gives a witness but it need not be on paper if the witness has some control over what is on their own screen. When it was clear this was happening I intervened to allow the witness to have a chance to read the material properly. Otherwise there would have been real unfairness. Unless such systems improve I will in future require witnesses to be given a paper bundle.”