THE SUPREME COURT CONSIDERS THE QUESTION OF EXPENSIVE BUNDLES: COULD IT BE CHEAPER ELECTRONICALLY?

May 15, 2016 · by · in Bundles, Case Management, Civil evidence, Costs, Uncategorized

Since Supreme Court decisions on trial bundles are few and far between I am  compelled to write about the judgment in Eclipse Film Partners -v- Commissioners for Her Majesty’s Revenue & Customs [2016] UKSC 24.  Here the Court considered bundles which cost over £200,000. I decided to investigate if e-bundles would be cheaper.

” the Bundle… was very extensive indeed (the total for the parties ran to over 700 lever-arch files), and its size was in part attributable to requests by the Revenue for the inclusion of documents of what some might think were of marginal relevance.”

THE CASE

At an appeal before the Tax Chamber an order was made that the applicant prepare the bundle. The applicant had earlier served a request that “the proceedings be excluded from potential liability for costs or expenses” under the relevant tu.es

“10.              Thereafter, Eclipse and the Revenue agreed directions for the procedure leading up to the hearing. The FTT duly made those directions, which included in para 13 a direction that the parties should try and agree an appropriate bundle of documents, which should be prepared by Eclipse, who were to serve three copies on the Revenue and three copies on the FTT. Paragraph 13 of the agreed Directions also provided that, if the parties were unable to agree the Bundle, each party was to prepare its own bundle of documents and serve three copies on the other party and on the FTT.
11.              The parties were unable to agree a Bundle, and there was a hearing before the FTT, at which, among other issues, that problem was discussed. The upshot of the hearing so far as this problem was concerned was an oral direction by the FTT that Eclipse prepare the Bundle, and that “the costs should be shared”. Eclipse’s solicitors accordingly prepared the Bundle, which was very extensive indeed (the total for the parties ran to over 700 lever-arch files), and its size was in part attributable to requests by the Revenue for the inclusion of documents of what some might think were of marginal relevance.”

THE COSTS OF THE BUNDLE

The applicant lost the appeal and duly sent a bill for half the costs of the bundle – that was £108,395.48 – to the Revenue.  The Revenue declined to pay. The Supreme Court upheld a decision that the order made did not override the tribunal rules that costs were not recoverable.

HOW MUCH?

There are a number of feature of this case that are of interest. However one matter that stands out is the cost of the bundle itself.  Particularly when one could make a fair bet that 90% of the documents in the bundles went unread.  Another is that,  given that the Revenue were never going to be paying for the bundle, there was no discipline involved and no sanction.They could simply ask for all documents to be included, many of which were of “marginal relevance”.

E-BUNDLES AND PUTTING THE TASK OUT TO TENDER?

I was interested to know whether it would have been cheaper for the bundles. I carried out a  tender process on twitter asking if anyone could have done it cheaper.   I had a very full and helpful reply from Sam Kendrick of K2 Legal Support.

SAM ON THE COST OF BUNDLES

“Assumptions: 
400 pages per lever arch file
700 lever arch files
Total pages 280,000

Hard Copy: 

Worst case scenario

Original documents require a lot of manual copying – Old documents, loose receipts, cheque books eTC.. This is very time consuming work and would be charged @ 16p a page. As this is a tax case I would be surprised if there is a high volume of colour, however I have included just under 10% colour across the files.
260,000 x 0.16 = £41,600
20,000 Colour pages  =£10,000
Sundries – 700 files and lots of dividers £2,500
Total = £54,100 or 25% of the price.

Most likely Scenario 

From my experience, most work will fall in the middle, some dividers staples ect @ 9p a page with limited colour.
275,000 x 0.9 = £41,600 = £24,750
5000 Colour pages  =£2,500
Sundries – 700 files and dividers £1,500
Total = £28,750 or 13% of the price.

Scanning: 

Scanning prices are the same as copying, however if a fully linked eBible is required there will be a small additional cost for links. That said there would be cost for stationery, files etc. For ease assume them to be the same as above. Scanning also clearly makes additional copies free and has all of the cost savings in terms of space, distribution etc.
All the above prices would get a bulk discount (from anyone in the industry not just K2) to reflect the scale of the job, I have ignored any discount for the purposes of this exercise.

Soft copy Originals:

It is very likely that some or all of the documents are available in soft copy, assumptions around cost for an eDiscovery project is near impossible because the scope of work is not known.  However I would think it would cost somewhere in the region of £10,000 to £25,000 depending on what is required. Even if all the documents are hard copy it could be scanned, unitised and coded and then uploaded onto a platform for far less than half the £216,000″  (Emphasis added).

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