BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?
The recent post on Caldero Trading -v- Leibson  EWCA Civ 935 included the Court of Appeal’s criticism of the voluminous bundles prepared in that case. The trial bundle is often neglected as a tool for advocacy.
THIS DOES MEAN THAT A BUNDLE SHOULD BE ADVERSARIAL?
Exactly the opposite. A trial,, application or appeal bundle should be prepared properly. If the bundle for the hearing, trial or appeal is prepared the court can, have a degree of confidence in the competence of the lawyers involved. The very least a court can expect is that some thought has gone into the content, indexing and preparing of the bundles. It is remarkable that, in a profession now fully aware of the need for presentation in all aspects of professional life, the presentation of a trial bundle is left to the last moment and to the lowest fee earner (or member of the administrative staff) on the rung.
The most popular individual blog post on this blog (of all time) is Trial Bundles: Timing; Contents and Presentation: do you Know Sedley’s Laws. (Everyone involved in litigation should know Sedley’s Laws. Anyone with any experience of applications or trials will recognise where they come from).
THE OBSERVATIONS OF AIKENS L.J. IN CALDERO
There is no doubt that these are worth repeating.
” There are far too many appeals where the parties simply copy all the trial bundles without thinking out what is actually needed for the appeal hearing. This is not only costly and wasteful but it demonstrates that the parties have not actually thought about the issues on the appeal and how to deal with them. In this case the original 50 trial bundles were reduced to 17, but as Rimer LJ has pointed out, very few documents were actually referred to before us. Furthermore, there was no attempt to produce a “core bundle”, which at least would have helped. The authorities bundles were also produced without any proper thought as to what actually might be needed in an appeal on fact, not a point of law.”
RULES ABOUT BUNDLES IN THE COURT OF APPEAL
SECTION VII – BUNDLES, AMENDMENT AND SKELETON ARGUMENTS
There is useful guidance in Practice Direction 52 C
Bundle of documents
(1) The appellant must lodge an appeal bundle which must contain only those documents relevant to the appeal. The bundle must –
(a) be paginated and in chronological order;
(b) contain an index at the front.
(2) Documents relevant to the appeal: Subject to any order made by the court, the following documents must be included in the appeal bundle –
(a) a copy of the appellant’s notice;
(b) a copy of any respondent’s notice;
(c) a copy of any appellant’s or respondent’s skeleton argument;
(d) a copy of the order under appeal;
(e) a copy of the order of the lower court granting or refusing permission to appeal together with a copy of the judge’s reasons, if any, for granting or refusing permission;
(f) a copy of any order allocating the case to a track;
(g) the approved transcript of the judgment of the lower court (except in appeals in cases which were allocated to the small claims track but subject to any order of the court).
(3) Documents which may be included: The following documents should also be considered for inclusion in the appeal bundle but should be included only where relevant to the appeal –
(a) statements of case;
(b) application notices;
(c) other orders made in the case;
(d) a chronology of relevant events;
(e) witness statements made in support of any application made in the appellant’s notice;
(f) other witness statements;
(g) other documents which the appellant or respondent consider relevant to the appeal.
The observations of the Court of Appeal in Leofelis -v- Lonsdale Sports  EWCA Civ 640
Although the observations in Leofelis pre-date an amendent to the Practice Direction, the judgment of Lloyd L.J. still carries many important messages.
Postscript: appeal documentation
- The state of the documentation for these appeals was not satisfactory, though it is fair to say that some of the difficulties arose from the present requirements of the Practice Direction supplementing Part 52 of the CPR, a point which it is hoped will be addressed before long by amendment of the Practice Direction. Because there were several separate appeals (though two of them were treated as one) the bundles contain several copies of the judge’s judgment, for example. The difficulties were enhanced in the present case by the change of position on the part of the Appellants, which meant that amended grounds of appeal and new skeleton arguments (on both sides) had to be added to already rather over-filled bundles. In addition, the correct state of the statements of case was not in all respects discernible because the judge had dealt at trial with the Defendants’ application for permission to amend the Defence and Counterclaim, but the amendments for which he gave permission were not incorporated, after the trial, in a definitive document. The late change of stance by the Appellants also made it necessary for the parties to reconsider whether all the necessary documentation was in the appeal bundles, as the parties had been commendably selective in including passages from witness statements and transcripts in the bundles.
- I do not intend by these comments to be critical of the parties in their preparation of the bundles, though this is not the first case in which I have found that individual bundles have become difficult to use because they are overloaded, despite paragraph 15.4(4)(e) of the Practice Direction supplementing Part 52. I do, however, wish to draw particular attention to the need, especially in complex cases such as this, for care and co-operation in the bundling, with a view to economy of documentation. This will be easier if the Practice Direction is amended. In the meanwhile it seems to me that, with cooperation and by seeking directions from the court, some of what might be achieved by a revision of the Practice Direction can be put in place for the convenience of parties and that of the court. In any case where the documentation for the appeal or appeals is likely to be substantial, and especially where several related appeals are to proceed together, it is appropriate for economy of documentation to be agreed, if possible, between the parties, and if necessary for relevant directions to be sought from the court. Parties and their representatives should consider, in cooperation with each other, whether there are ways to make the bundling of documents as convenient as possible for the advocates in the preparation of the appeal as well as for the court hearing the appeal, even in respects which the present Practice Direction may be thought not to allow. If such ways can be agreed, a direction by consent can be sought from the court and dealt with by a deputy Master, or if necessary by a supervising Lord Justice, on paper.
- In particular: (1) where the documents which will be referred by each party are in a number of different files a chronological bundle of the documents numbered consecutively should be agreed, albeit that the documents will need to bear their original file numbering. (2) If collapsing trial files produces sensible numbering and presentation without the addition of further numbering it will be sensible to adopt that process. (3) As the Practice Direction already provides (on a point which it is unlikely would be relaxed) files should not be over-filled. They have to be carried and used. Use involves reaching for them, opening them and reading the contents conveniently. A good working rule is the 300-page maximum for any one file, set out in paragraph 14 of Appendix 6 to the Chancery Guide. (4) Skeleton arguments, when referring to documents, should identify the correct bundle and page number.
- What I have said in paragraphs 188 to 190 about bundles has not only the agreement of Waller LJ, Vice-President of the Civil Division of the Court of Appeal, and of Keene LJ, as shown by their agreement below, but also that of the Master of the Rolls.
THERE IS EVEN A BOOKLET EXPLAINING EXACTLY HOW TO LAY OUT AN APPEAL BUNDLE
The Court & Tribunal Service has prepared a useful bundle which is exactly to point: How to Prepare an Appeal Bundle for the Court of Appeal
OTHER USEFUL POSTS AND LINKS ON THIS BLOG
- A word about bundles: more views from the Bench
- The Importance of Trial Bundles: read Legal Orange
- Guides & Links to appealing to the Court of Appeal
- Trial Bundles: another view from the Bench
Electronic bundles are changing a part of this scene. When a judge complains about the size of the bundle he is really complaining about the logistics of finding an individual page in the bundle. The issues are physical: space on the bench, weight of the bundle (when carried by the clerk of court or home by the judge), identification of a bundle page and speed of moving from one page to the next.
Electronic bundles greatly mitigate these factors. I wold suggest that the size of a bundle may not be of concern to a judge if presented electronically with the right facilities.
Take a look (10 minute video): http://youtu.be/7r8RUwORvkc
It is interesting that the court consider it ‘remarkable’ that the presentation of trial bundles is left to the lowest grade fee earner or admin staff when the MOJ cost budgeting guidelines explicitly state that assembling the bundles is not fee earners’ work. Whilst clearly this may be the case for copying the bundles, surely for the preparation/ assembly of the bundles it is not so clear cut when decisions have to be made as to the relevance and inclusion of documents.