WHAT A DAY FOR BUNDLES – SUPREME COURT SHENANIGANS DOESN’T LEAD TO PANNICK: A RECAP OF AVAILABLE GUIDANCE

Yesterday the Supreme Court was hearing two appeals in relation to the the prorogation of Parliament.  The line up of legal talent is immense.  However every single litigation lawyer watching could identify with the problems that the court was having with the pagination of bundles.

The many, many posts on this blog about the importance of bundles emphasised in the most prominent circumstances.

A Twitter hashtag #bundlegate started.  Here is just a flavour.

“Matthew Scott

Lord Pannick is working from a bundle numbered 68 pages out from the Court’s electronic bundle: ie page 454 is 512. He’s having to add 68 to all his page references as he speaks. #SupremeCourt

a moment of silent remembrance, please, for the junior lawyers working on the Miller case, who expired of fright during Lord Pannick’s exchange with Lady Hale about the erroneous bundling of the documents”

“Adam Creme 

Falls asleep momentarily on the sofa. Wakes up screaming *bundles*

There can be no better time to remind people of the rules and guidance in relation to bundles.  The bundle for a trial or application is an important document. It is part of the process of advocacy – of persuasion. The judge may know nothing of you, your firm, or your legal credentials.  The only thing they have to go on is the quality of the material you put before the court. This is the first impression that the judge will have of the lawyers dealing with the case.  You will never get a second chance the make a first impression.  If the bundle is chaotic, does not comply with the rules, and follows some (or all) of Sedley’s laws then you are doing your client no service at all.

 

BUNDLES IN CIVIL PROCEEDINGS

THE KEY POINT: WHEN THE TRIAL BUNDLE SHOULD BE LODGED

Take careful note of these deadlines.

The deadline for lodging trial bundles is contained in CPR 39.5 (2). The claimant must provide the court with the trial bundle not more than 7 days and not less than 3 days before the start of the trial. If the bundle does not reach the court by this deadline a court may reject the bundle or be made the subject of a special costs order.

THE CONTENTS OF THE TRIAL BUNDLE

This is dealt with in CPR PD23

27.4 Rule 39.5 provides that the claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.

27.5 Unless the court orders otherwise, the trial bundle should include a copy of—

(a) the claim form and all statements of case;

(b) a case summary and/or chronology where appropriate;

(c) requests for further information and responses to the requests;

(d) all witness statements to be relied on as evidence;

(e) any witness summaries;

(f) any notices of intention to rely on hearsay evidence under rule 32.2;

(g) any notices of intention to rely on evidence (such as a plan, photograph etc.) under rule 33.6 which is not—

(i) contained in a witness statement, affidavit or experts’ report;

(ii) being given orally at trial; and

(iii) hearsay evidence under rule 33.2;

(h) any medical reports and responses to them;

(i) any experts’ reports and responses to them;

(j) any order giving directions as to the conduct of the trial; and

(k) any other necessary documents.

27.6 The originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial.

27.7 The preparation and production of the trial bundle, even where it is delegated to another person, is the responsibility of the legal representative who has conduct of the claim on behalf of the claimant. If the claimant is unrepresented, the court may direct that another party must prepare and produce the trial bundle.

27.8 The trial bundle should be paginated (continuously) throughout, and indexed with a description of each document and the page number. Where the total number of pages is more than 100, numbered dividers should be placed at intervals between groups of documents.

27.9 The bundle should normally be contained in a ring binder or lever arch file. Where more than one bundle is supplied, they should be clearly distinguishable, for example, by different colours or letters. If there are numerous bundles, a core bundle should be prepared containing the core documents essential to the proceedings, with references to the supplementary documents in the other bundles.

27.10 For convenience, experts’ reports may be contained in a separate bundle and cross referenced in the main bundle.

27.11 If a document to be included in the trial bundle is illegible, a typed copy should be included in the bundle next to it, suitably cross-referenced.

27.12 The contents of the trial bundle should be agreed where possible. The parties should also agree where possible—

(a) that the documents contained in the bundle are authentic even if not disclosed under Part 31; and

(b) that documents in the bundle may be treated as evidence of the facts stated in them even if a notice under the Civil Evidence Act 1995 has not been served.

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.

27.13 The party filing the trial bundle should supply identical bundles to all the parties to the proceedings and for the use of the witnesses.

27.14 Unless the court otherwise directs, contemporaneous documents in the trial bundle relied on by the parties or either of them should be assembled as a single unit in chronological order of creation.

27.15 Unless the court otherwise directs, documents in the trial bundle should be copied double-sided.”.

ALL LITIGATORS SHOULD KNOW SEDLEY’S LAWS OF DOCUMENTS

It is surprising how many trial bundles do not comply with the basic tenets of the Practice Direction.  Many irrelevant documents are included. (For instance there are not many cases where the judge needs to see the Response Pack, every item of correspondence and the claimant’s medical records since birth).

It was clearly his extensive experience with trial bundles that led Sedley L.J. to write “Sedley’s Laws of Documents”.  These are laws that should be considered, in detail, by every litigator.

First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.

Second Law: Documents shall in no circumstances be paginated continuously.

Third Law: No two copies of any bundle shall have the same pagination.

Fourth Law: Every document shall carry at least three numbers in different places.

Fifth Law: Any important documents shall be omitted.

Sixth Law: At least 10 percent of the documents shall appear more than once in the bundle.

Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.

Eighth Law:

  1. At least 80 percent of the documents shall be irrelevant.
  2. Counsel shall refer in court to no more than 10 percent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.

Ninth Law: Only one side of any double-sided document shall be reproduced.

Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.

Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by:

  1. a steel pin sharp enough to injure the reader,
  2. a staple too short to penetrate the full thickness of the bundle.
  3. tape binding so stitched that the bundle cannot be fully opened, or,
  4. a ring or arch-binder, so damaged that the two arcs do not meet.

WIT AND HUMOUR ARISING OUT OF EXASPERATION?

 There are further and supplemental parts of the Laws that require consideration

Have a look at the Law at http://etclaims.co.uk/2008/09/sedleys-laws-of-documents/  and note the very witty additional comments.  My favourite is

“A further law: If any portion of any document is of particular importance to any issue in the case, that portion shall be highlighted, before copying, in a dark colour so that after copying it is rendered as nearly illegible as is reasonably practicable.”

DOCTRINAL DIFFERENCES

The comments also reveal some controversy as the law (there may be doctrinal differences in years to come).

“A note that this account is missing the Eighth law, and (ah, the irony!) the 8th and following in this list are therefore misnumbered.

The Eighth law is:

“Significant passages shall be marked with a highlighter that goes black when photocopied”.”

 THE CHANCERY GUIDE: EVERY LITIGATOR’S FRIEND

I have observed before that the Chancery Guide is too good to be confined to Chancery Practitioners.  It has a useful section on the preparation of bundles in chapter 7.

 “BUNDLES
7.9.     Bundles of documents for use in court will generally be required for all hearings if more than 25 pages are involved (and may be appropriate even if fewer pages are involved). The efficient preparation of bundles of documents is very important. Where bundles have been properly prepared, the case will be easier to understand and present, and time and costs are likely to be saved. Where documents are copied unnecessarily or bundled incompetently the cost may be disallowed.
7.10    Where the provisions of this Guide as to the preparation or delivery of bundles are not followed, the bundle may be rejected by the court or be made the subject of a special costs order.
7.11    The claimant or applicant (as the case may be) should begin preparation of the bundles in sufficient time to enable:
(1)       the bundles to be agreed with the other parties (so far as possible);
(2)       references to the bundles to be used in skeleton arguments; and
(3)       the bundles to be delivered to the court at the required time.
7.12.   The representatives for all parties involved must co-operate in agreeing bundles for use in court. The court and the advocates should all have exactly the same bundles.
7.13    When agreeing bundles for trial, the parties should establish through their legal representatives, and record in correspondence, whether the agreement of bundles:
(1)     extends no further than agreement of the composition and preparation of the bundles; or
(2)     includes agreement that the documents in the bundles are authentic (see rule 32.19); or
(3)     includes agreement that the documents may be treated as evidence of the facts stated in them.
The court will normally expect parties to agree that the documents, or at any rate the great majority of them, may be treated as evidence of the facts stated in them. A party not willing to agree should, when the trial bundles are lodged, write a letter to the court (with a copy to all other parties) stating that it is not willing to agree, and explaining why.
7.14.   Detailed guidelines on the preparation of bundles are set out in Appendix 6, in addition to those in PD 39A (Miscellaneous Provisions relating to Hearings) paragraph 3. These must always be followed unless there is good reason not to do so. Particular attention is drawn to the need to consider the preparation of a core bundle.
7.15.   The general rule is that the claimant/applicant must ensure that one copy of a properly prepared bundle is delivered at the Chancery Judges’ Listing Office not less than three clear days (and not more than seven days) before a trial or application by order. However, the court may direct the delivery of bundles earlier than this. Where oral evidence is to be given an additional copy of the bundle must be available in court for the use of the witnesses. In the case of bundles to be used on judge’s applications (other than applications by order) the bundles must be delivered to the clerk to the Interim Applications judge by 10 am on the morning preceding the day of the hearing unless the court directs otherwise. A bundle delivered to the court should always be in final form and parties should not make a request to alter the bundle after it has been delivered to the court save for good reason.

 APPENDIX 6

For the sake of completeness.  Appendix 6 states:

Appendix 6: Guidelines on bundles

Bundles of documents must comply with paragraph 3 of PD 39A – Miscellaneous Provisions relating to Hearings. These guidelines are additional to those requirements, and they should be followed wherever possible.
  1. The preparation of bundles requires co-operation between the legal representatives for all parties, and in many cases a high level of co-operation. It is the duty of all legal representatives to co-operate to the necessary level. Where a party is a litigant in person it is also that party’s duty to co-operate as necessary with the other parties’ legal representatives.
  2. Bundles should be prepared in accordance with the following guidance.
  3. No more than one copy of any one document should be included, unless there is good reason for doing otherwise. One such reason may be the use of a separate core bundle.
  4. If the same document is included in the chronological bundles and is also an exhibit to an affidavit or witness statement, it should be included in the chronological bundle and where it would otherwise appear as an exhibit a sheet should instead be inserted. This sheet should state the page and bundle number in the chronological bundles where the document can be found.
  5. Where the court considers that costs have been wasted by copying unnecessary documents, a special costs order may be made against the relevant person. In no circumstances should rival bundles be presented to the court.
  6. In general documents should be arranged in date order starting with the earliest document.
  7. If a contract or other transactional 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 where it would have appeared chronologically and where it is to be found instead. Alternatively transactional documents may be placed in a separate bundle as a category.
  8. This is covered by paragraph 3 of the PD, but it is permissible, instead of numbering the whole bundle, to number documents separately within tabs. An exception to consecutive page numbering arises in the case of the core bundle. For this it may be preferable to retain the original numbering with each bundle represented by a separate divider.
  9. Page numbers should be inserted in bold figures, at the bottom of the page and in a form that can clearly be distinguished from any other pagination on the document.
  10. Where possible, the documents should be in A4 format. Where a document has to be read across rather than down the page, it should so be placed in the bundle as to ensure that the top of the text starts nearest the spine.
  11. Where any marking or writing in colour on a document is important, for example on a conveyancing plan, the document must be copied in colour or marked up correctly in colour.
  12. Documents in manuscript, or not easily legible, should be transcribed; the transcription should be marked and placed adjacent to the document transcribed.
  13. Documents in a foreign language should be translated; the translation should be marked and placed adjacent to the document translated; the translation should be agreed or, if it cannot be agreed, each party’s proposed translation should be included.
  14. The size of any bundle should be tailored to its contents. There is no point having a large lever-arch file with just a few pages inside. On the other hand bundles should not be overloaded as they tend to break. No bundle should contain more than 300 pages.
  15. Binders and files must be strong enough to withstand heavy use.
  16. Large documents, such as plans, should be placed in an easily accessible file. If they will need to be opened up often, it may be sensible for the file to be larger than A4 size.
  17. Indices should, if possible, be on a single sheet. It is not necessary to waste space with the full heading of the action. Documents should be identified briefly but properly, e.g. “AGS3 – Defendant’s Accounts”.
  18. Outer labels should use large and clearly visible lettering, e.g. “A. Pleadings.” The full title of the action and solicitors’ names and addresses should be omitted. A label should be used on the front as well as on the spine.
  19. It is important that a label should also be stuck on to the front inside cover of a file, in such a way that it can be clearly seen even when the file is open.
  20. All staples, heavy metal clips etc. should be removed.
  21. Statements of case should be assembled in ‘chapter’ form, i.e. claim form followed by particulars of claim, followed by further information, irrespective of date.
  22. Redundant documents, e.g. particulars of claim overtaken by amendments, requests for further information recited in the answers given, should generally be excluded. Backsheets to statements of case should also be omitted.
  23. Where there are witness statements, affidavits and/or expert reports from two or more parties, each party’s witness statements etc. should, in large cases, be contained in separate bundles.
  24. The copies of the witness statements, affidavits and expert reports in the bundles should have written on them, next to the reference to any document, the reference to that document in the bundles. This can be done in manuscript.
  25. Documents referred to in, or exhibited to, witness statements, affidavits and expert reports should be put in a separate bundle and not placed behind the statement concerned, so that the reader can see both the text of the statement and the document referred to at the same time.
  26. Backsheets to affidavits and witness statements should be omitted.
  27. Before a new document is introduced into bundles which have already been delivered to the court – indeed before it is copied – steps should be taken to ensure that it carries an appropriate bundle/page number, so that it can be added to the court documents. It should not be stapled, and it should be prepared with punch holes for immediate inclusion in the binders in use.
  28. If it is expected that a large number of miscellaneous new documents will from time to time be introduced, there should be a special tabbed empty loose-leaf file for that purpose. It is conventional to label this file “X”. An index should be produced for this file, updated as necessary.
  29. It is seldom that all inter-solicitor correspondence is required. Only those letters which are likely to be referred to should be copied. They should normally be placed in a separate bundle.
  30. Where the volume of documents needed to be included in the bundles, and the nature of the case, makes it sensible, a separate core bundle should be prepared for the trial, containing those documents likely to be referred to most frequently.

ADVICE FROM TWITTER

An earlier post gathered up advice on bundles from Twitter.

OK nice lawyers (& others) of Twitter. I wasn’t going to impose again so quickly, however a rule change this week makes this very apposite. What advice would you give to young lawyers about bundles & pagination? Have you any horror stories about bundles you can share?

THE REALITY

Trial Bundle (n) “A collection of mainly irrelevant and poorly-photocopied pages, in a defective lever-arch file, the relevant parts of which are added as the trial progresses.”

Based on the bundle I am currently working through, ensure the pagination is as close to the margin as possible. That way the copies can cut off the last digit. After page 1699, page 170, 170, 170, 1704, 170, 170 .

THE JUDICIAL VIEW

How many times is the judge referred to the Listing questionnaires or Pre trial checklists in civil trials? How often are we referred to the voluminous guidance notes on a C100? Leave them out!! And any other standard docs which contain no evidence. Please!

THE SILKY VIEW

CONTRIBUTIONS FROM THE  OTHER NICE PEOPLE OF  TWITTER

  1. Paperless, electronic and including only those documents that are necessary AND permitted.

    Please, please paginate exhibits rather than giving each document a cover page. Telling a judge to turn to ‘exhibit xy9’ is worse than useless.

    In long running cases with multiple bundles over time, don’t repaginate documents from the earlier bundles. Having 2 or 3 different numbers on each page is super confusing (yes, I have tripped over this one in court)

    When a lever arch file arrives already broken, counsel will do a lot of cursing. It turns out I have a lot of issues around bundles.

    The correspondence doesn’t need a tab for each and every email. Please god. ‘If your honour could turn to tab 278’ *judicial sigh*

    Don’t ever be the person who says “my page B25” all the way through the hearing. If you are out of step with everyone else, use the index and fix it.

    If the judge has specifically told you to comply with the PD, then do it, but don’t then produce a case summary with suggested reading which tells the judge to read *all* of the documents you’ve removed.

    Use electronic bundling software. Makes it easy to add pages, take them out, move them around, re-number, circulate electronic bundles so they can be checked before you print half a dozen copies.

    I’m going to @ . I’ve used it for a couple of years and it really has been a game changer. Saves lots of time.

    I do know a tale of a solicitor in high profile, multi party litigation who ended up including a photocopy of their daughter’s (quite lengthy) Christmas wish list in the bundles. Though the story has grown in its embellishment with each telling…

    The most important thing on the spine is the letter/number. Not your firm’s name/address or the thirty-six parties in the case. Advocates often have very little time to pick the right bundle out, whilst being asked difficult questions! Make it easy to find! 👓

    You’re obviously not from the marketing department 😂😉

    Do ensure that the most difficult submission you have to make also requires at least 3 bundles to be open at once. Although the actual provision is obscure, it is common knowledge that the CPR provides for interest on your judgment award, if you get 5 bundles simultaneously open.

    When asking your junior to prepare court bundles remember how long they take to do… Copiers have a tendency to break down when most needed. Also, don’t keep harassing the junior asking “are they done yet”… it adds nothing to the process except unnecessary stress.

    And a beautifully prepared bundle can set your application off on the right foot… new file, fresh tabs, a good index and pagination that is clear (don’t put the number too far into the corner or it may not copy properly).

    Replying to 

    Those who do not line up hole punches consistently through the bundle should be shot at dawn.

    Hide the page numbers in random locations on the page. Failing that, so close to the bottom right corner that they are lost when photocopying.

    Ideally, print continuous pagination numbers over the internal pagination of each individual document, for the perfect indeterminate smudge.

    Too many to recount. The same obvious errors over and over and over. Everyone has a subtly different bundle, a few pages out. Colour photographs have been photocopied in black and white and can’t be seen. Best argument for going paperless I guess.

    Treat the judges with absolute respect and don’t talk too slowly… 😉

    You are being very careful Paul…

    When you are a trainee or NQ, take time to visit on site print staff. Having a good relationship with them where they know you will likely pay off big time, plus it’s good manners and friendly. (Also applies more senior if you move)

    My area was employment, where there are more unrepresented claimants and also deadlines are a bit more ‘bendy’. Do not paginate too early. I know you want to be organised, but no judge likes page 64t.

    Page turn. Yes it’s dull. Yes you’ll struggle to bill it. But it’s amazing how often a feeder sucks two pages through together and misses one. It WILL be the judge’s copy.

    Think about how to handle emails. Employment law tends to create a lot of email evidence. An original email can end up in a bundle dozens of times as the reply trail grows and branches. Liaise with your opposite number to avoid this where possible.

    What have you started, bundles are a nightmare for all concerned. Recently had a case where the Judge returned his bundle to update for the next hearing, when I opened it the first page was a copy of The Times crossword- completed!

    And ask someone else to check it, because your eyes will have gone all wonky.

    I have often suspected that when preparing the bundle for defendant’s counsel, it is traditional to misalign every page, cut off the page numbers and then take a mallet to the lever arches.

    If it makes you feel any better, Richard, please read my thread. You’re definitely not singled out.

    This is something that must now be taught. Hitherto it has just happened by accident.

    Don’t use/re-use folders with metal corner guards that have morphed into concealed blades – “Peaky Folders”? Especially, if you’re a solicitor, don’t send them to your own Counsel – this is a grudge I’ve harboured for years; not directed at anyone who’s instructed me recently.

    I had pliers on my desk to remove them without injury. Nobody ever noticed.

    Check. The. Duplex.

    Make sure it complies with Directions. If (in immigration) your objective bundle doesn’t have a key passage index, there’s a reasonable chance you’ll spend your morning writing it out by hand.

    Bubble wrap the lever-arch files inside the front cover and around the outside for the copies going to the Judge and witness box. The Defendant’s copy, well I leave that to your discretion 😁

    1. Never number backsheets in pleading bundles 2. Provide an index to the pleading bundle to the other side and not a numbered copy. 3. Sit back and enjoy the desperation of the other side’s counsel as he repeatedly directs the judge to the wrong page in the pleading bundle

    Bin the backsides too. What purpose do they serve. [I am assuming Tim was referring to “backsheets” rather than “backsides” & spellchecker took over]

    As an advocate, write the number of the bundle on the inside of the front cover (as well as on the spine and front), so that when you have several open at once you can quickly identify which is which, without having to turn them over

    They will take significantly longer to prepare than you could possibly have envisaged, but you won’t recover anywhere near that time when it comes to costs!

    I recall a Fast Track Trial in which a man of quite large stature was seeking damages following an accident. The judge, my opponent and I all found that our bundles tended to fall open at the page bearing a photograph of his heavily bruised naked backside, as if by magic!

    Respect the poor clerk/legal assistant/paralegal who made them. Too many people seem to think that bundles are easy – really they are not! Getting them right is an utterly under-appreciated art.

    If you run out of lever arch file colours, experience tells me that referring the Judge to the Star Wars bundle will gain you and your client extra credit.

    Number BEFORE you photocopy…

    I once received a bundle from the other side (not a civil litigation matter) entirely paginated in Roman numerals. And to top it off, they’d got them wrong.

    Electronic bundles are a dream…

    Delegate it to someone else😂. If you can’t make sure all documents in your master copy are in date order, colour dividers are used for court orders, statements, etc. Copy bundle required for each party, witness box & judge. Number bundles of more than 1 .

    All stories about bundles are horror stories. They are the only type.

    Including the entire disclosure or correspondence file in reverse chronological order means trial counsel will have to spend time untangling what is relevant. That is time they could have spent on strengthening their arguments or legal research.

     14 hours ago

    Case details (parties, claim no etc) on a label stuck to the top left inside corner of the front of the lever arch file (when it is open) – judges seem to like that. Memorize your bundle and pagination so you can point the judge to a document without faffing with the index.

     

    Pagination is a word they will ever use in normal life! I’ve tried! And look like an idiot! Not advice. But true.

    The theory: Insert a new witness statement into existing bundle without disturbing page numbers The practice: “Turn to bundle 2, page C168BX-168CH

    It’s the stuff of nightmares. We used to refer to one judge as Judge Bundle – I had to think for a moment there to recall his real name.

    Only put legible documents in bundles (or explain why an illegible one is relevant), don’t rely on colour for meaning, think about what’s relevant for the hearing you’re doing (not every doc in the case), ask a colleague to check your index for sanity before copying. 1/2

     

    Have the bundle number in large font so it can be read by middles aged eyesight at a metre. Also have bundle number on the inside of the front of the lever arch so with bundle open you know what it is. Boring but getting this stuff right is the bedrock of good advocacy.

    Don’t overstuff lever arch files! I’m not sure there’s anything more annoying in this job than the dreaded “lever arch file metal bits don’t meet anymore” – I had a file do this in the middle of cross examination once, and it made it so difficult.

    Ensure your solicitors ALWAYS bring at least one extra copy of the bundle to court, particularly in the County Court, as the chances of the one they filed being with the judge are not high.

    There are *always* further docs produced/generated at court during trial. Adding these to the ‘right’ section as you go can be a nightmare. Can be helpful, with judicial permission (usually given) to start an ongoing ‘Section X’ for these. Easy to use and v handy for future ref.

    Scan documents as they come to you during a matter. Use a standardised file naming convention. Time consuming at first but pays off closer to trial because you can use bundling software to quickly and easily construct digital bundles when time is at a premium pre-trial.

    I’m for D at trial. My opponent had just called C into the witness box when it emerged that her sols had prepared trial bundles for both counsel and the judge but….not one for the witnesses. It led to the adjournment of the trial. Solicitor to pay costs…