MORE ABOUT TRIAL BUNDLES: MOST OF THE STUFF IN THEM IS USELESS (APPARENTLY)
The decision discussed earlier today of Dowdall -v- William Kenyon & Sons Ltd  EWHC 2822 (QB) contained an interesting observation that I wanted to deal with separately. It concerns the “usefulness” of trial bundles.
OBSERVATIONS ON THE BUNDLES
- The Claimant has served a witness statement by him, and another by his present solicitor, Mr. Johnson. I have also considered the statement which he made in the First Action. I did not hear oral evidence. In the case of the Claimant, that was because he is not well, and no-one wished to cross-examine him. His evidence is of limited relevance to the issues which I have to resolve. Mr. Johnson was not cross-examined but I heard submissions about the sufficiency of his evidence on certain significant matters. The court was supplied with 5 bundles of documents. I indicated that pre-reading of all that material had been impossible and that I was going to decide the case on the basis of the written material which was drawn to my attention during the hearing or in the Skeleton Arguments. Documents which were not drawn to my attention by these means are not, so far as I am concerned, part of the evidence merely because they appear in a Bundle but have not been mentioned by anyone. Counsel accepted this approach and I heard conspicuously careful and helpful submissions on behalf of all 4 parties.
SO FIVE BUNDLES AND MOST OF THE DOCUMENTS IN THEM WERE NOT READ
It is perhaps not surprising that the most read post on this blog is the post on the preparation of trial bundles. Considerable expense, time and effort (and a few trees) could be saved if the parties produced bundles that contained only the relevant documents as opposed to every single conceivable document.
It would be wonderful to limit the bundles to the documents we thought relevant. But woe betide the solicitor who excludes something the judge thinks relevant, after much argument running over several days. So it’s safer to put it all in.
Also, the big problem is what can one do about it. On a recent trial I had, I had suggested about 100 pages of documents which were relevant and would be referred to.
The opponent’s solicitor INSISTED on including every disclosed document (including the 84 year old Claimant’s medical records since birth).
There were three trial bundles per set, and of course seven sets to be printed, resulting in the depletion of a small sized rainforest. And of course the case settled on the door of the court meaning not a single one of the pieces of paper was ever looked at. But even if it hadn’t, what are we to do? We can not refuse to include the documents in the bundle.
I have another one, application for relief from sanctions, opponent insisting and demanding that every inter-solicitor correspondence and email be included. Him being one of these solicitors I suspect has only one case, there are an awful lot of them. In my view, not a single one of these items of correspondence is remotely relevant to the question of whether a four hour delay in filing Precent H should be excused or not. Indeed, after the recent earthquake in the Court of Appeal it seems to me beyond question that the opponent should be agreeing to the application by consent. But no, they want emails included saying such useful things as “Please could you confirm that your letter sent dated 30th July was actually not sent by you until the 1st August, failing which we will draw your conduct to the court’s attention”.
Perhaps the rules should impose an automatic penalty of say £100 deducted from any costs order in favour of a party who includes a page in a trial bundle not subsequently referred to, payable per page.
This is an area where lawyers cannot win. Judges will moan if the bundle is too big (ie, contains material which is not referred to) and moan if it is too small (ie, omits material which turns out to be relevant at the hearing). If the solicitors disagree over what should be in the bundle and threaten to apply for costs orders against each other, judges will moan about that too.
The obvious (and surely correct) thing to do is include too much, rather than too little, and identify the key documents in the skeleton argument.
In relation to trial bundles, PD39A says “where it is not possible to agree the contents of the bundle, a summary of the points on which the parties are unable to agree should be included.”
The (surprisingly useful) Handbook for Litigants in Person (which should be required reading for any newly-qualified litigator, never mind LIPs) says this at paragraphs 15.32-15.33:
“The contents of the trial bundle must be agreed. This is straightforward. The
party responsible for the bundle should prepare a draft index which he sends to
his opponent. The opponent should check very carefully that all the documents
he wants in the bundle are listed in the index, and if they are not he should
inform the first party that he wishes to have the further documents in the
bundle (it is usually helpful to amend the index). The first party must then
include the documents. There is no room for gamesmanship.
There will be occasions that one party will object to the inclusion of particular
documents either on the grounds of relevance or on the grounds of privilege.
Quite frankly there is usually little purpose served arguing about relevance. If
the other side insists, have the document in the bundle. (If there are many such
documents it may be possible to argue about the cost involved later).”