BUNDLES – AGAIN: BORROWING FROM THE COMMERCIAL COURT GUIDE
For many years a post on preparing a trial bundle was, by far, the most read post on this blog. I have re-visited the issue recently. It is worthwhile all practitioners having a look at the specific guidance on bundles given in The Commercial Court Guide. This Guide, including the relevant Appendix, provides much useful information relevant to most forms of litigation.
“ Bundles should not be overfilled“
THE GUIDANCE ITSELF
J.4 Documents for trial
J4.1 The parties should discuss the use of electronic copy or hard copy documents at trial, or a combination.
J4.2 Bundles of documents (electronic or paper) for the trial must be prepared in accordance with Appendix 7.
J4.3 The number, content and organisation of the trial bundles must be approved by the advocates with the conduct of the trial.
J4.4 Apart from certain specified documents, trial bundles should include only necessary documents: PD 39A § 3.2(11). Consideration must always be given to what documents are and are not necessary. Where the Court is of the opinion that costs have been wasted by the inclusion or copying of unnecessary documents it will have no hesitation in making a special order for costs against the person responsible.
J4.5 The number content and organisation of the trial bundles should be agreed in accordance with the following procedure, unless otherwise directed:
(a) the claimant must submit proposals to all other parties at least 6 weeks before the date fixed for trial; and
(b) the other parties must submit details of additions they require and any suggestions for revision of the claimant’s proposals to the claimant at least 4 weeks before the date fixed for trial. All information in this procedure must be supplied in a form that will be most convenient for the recipient to understand, use and respond to. The form to be used should be discussed between the parties before the information is supplied.
(a) It is the responsibility of the claimant’s legal representative to prepare and provide the agreed trial bundles: see PD 39A § 3.4.
(b) If another party wishes to put before the Court a bundle that the claimant regards as unnecessary the other party must prepare and provide it.
(a) Preparation of the trial bundles must be completed not later than 10 days before the date for service of skeleton arguments under section J6 unless the Court orders otherwise.
(b) Any party preparing a trial bundle should, as a matter of course, provide all other parties who are to take part in the trial with a copy (see PD 39A § 3.10), at the cost of the receiving party. Further copies should be supplied on request, again at the cost of the receiving party.
J4.8 Unless the Court orders otherwise, a full set of the trial bundles must be provided with the Listing Office two clear days before the start of the designated reading period (see J6.2) and in any event at least 7 days before the date fixed for trial. The core bundle should be prepared and provided at the latest by the time of providing the first trial skeleton argument.
J4.9 If bundles are provided late, this may result in the trial not commencing on the date fixed, at the expense of the party in default. An order for immediate payment of costs may be made. J4.10 If oral evidence is to be given at trial, the claimant should provide a clean unmarked set of all relevant trial bundles for use in the witness box: PD 39A § 3.10. The claimant is responsible for ensuring that these bundles are kept up to date throughout the trial.
Appendix 7 Preparation of Bundles (electronic or paper)
1. The preparation of bundles requires a high level of co-operation between legal representatives for all parties. It is the duty of all legal representatives to co-operate to this high level.
2. For the trial a core bundle should be provided containing the really important documents in the case. The documents in this bundle should be paginated, but each page should also bear its bundle and page number reference in the main trial bundles. It is particularly important to allow sufficient room for later insertions (see paragraph 3(viii) below). The core bundle should be prepared and provided at the latest by the time of the provision of the first trial skeleton. In an appropriate case, where all other bundles are in electronic form it may be convenient for there to be a core bundle that is in both handysized hard copy form and electronic form.
3. All bundles should be prepared as follows:
(i) No more than one copy of any one document should be included, unless there is good reason for doing otherwise;
(ii) Contemporaneous documents, and correspondence, should be included in chronological order;
(iii) Where a contract or similar document is central to the case it may be included in a separate place provided that a page is inserted in the chronological run of documents to indicate:
(A) the place the contract or similar document would have appeared had it appeared chronologically; and
(B) where it may be found instead;
(iv) Documents in manuscript, or not fully legible, should be transcribed; the transcription should be marked and placed adjacent to the document transcribed;
(v) Documents in a foreign language should be translated; the translation should be marked and placed adjacent to the document transcribed; the translation should be agreed, or, if it cannot be agreed, each party’s proposed translation should be included;
(vi) If a document has to be read across rather than down the page, it should be so placed in the bundle as to ensure that the top of the text is nearest the spine or left hand edge of the screen;
(vii) Bundles that are printed in hard copy should (save where there is good reason otherwise) be printed/copied single-sided. No bundle should contain more than 300 (single-sided) pages;
(viii) Bundles should not be overfilled, and should allow sufficient room for later insertions. Subject to this, the size of file used should not be a size that is larger than necessary for the present and anticipated contents;
(ix) Bundles should be paginated, in the bottom right hand corner and in a form that can clearly be distinguished from any existing pagination on the document; the pagination should begin afresh at the beginning of each bundle;
(x) Bundles should be indexed, save that a chronological bundle of contemporaneous documents need not be indexed if an index is unlikely to be useful;
(xi) Bundles should be numbered and (where in hard copy) named on the outside and on the inside front cover, the label to include the short title of the case, and a description of the bundle (including its number, where relevant);
(xii) Dividers or tabs within bundles may assist in the organisation and use of a bundle, but they should not be overused (for example to divide each individual page or piece of correspondence).
4. Documents within bundles should be marked as follows:
(i) When copy documents from exhibits have been included in the bundle(s), then unless clearly unnecessary, the copy of the affidavit or witness statement to which the documents were exhibited should be marked in a convenient way (for example in the right hand margin or as a footnote, and in manuscript if need be) to show where the document referred to may be found in the bundle(s).
(ii) Unless clearly unnecessary, where copy documents in a bundle are taken from the disclosure of more than one party the documents should be marked in a convenient way (for example in the top right hand corner or as a footnote, and in manuscript if need be) to show from which party’s disclosure the copy document has been taken;
(iii) Where there is a reference in a statement of case or witness statement to a document which is contained in the trial bundles a note should be made in a convenient way (for example in the margin or as a footnote, and if necessary in manuscript) identifying the place where that document is to be found. Unless otherwise agreed this is the responsibility of the party tendering the statement of case or witness statement.
(iv) Where the method of cross referencing used in (i) or (iii) above involves using electronic copies of statements of case or witness statements and has the effect of altering the format or length of the same as compared to the signed originals to which a statement of truth was applied, then a solicitor responsible for the production of the bundles must sign a short statement to confirm that he/she has checked and is satisfied that the wording of the statements of case or witness statements in the form appearing in the bundles remains unaltered from the wording in the signed originals to which a statement of truth was applied.
5. Large documents, such as plans, should be placed in an easily accessible file.
6. Save for documents in respect of which there has been a timely notice to prove authenticity, all documents in the trial bundle will be admissible in evidence without more. However the fact that documents in the trial bundle are admissible in evidence does not mean that all such documents have been adduced in evidence so as to form part of the evidence in the trial: see J8.5 – 8.7
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- A word about bundles: More views from the Bench.
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- The Importance of Trial Bundles again: Read Legal Orange.
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