2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (1): BUNDLES

I am sorry to be starting the annual review of procedure so early, but December is a busy month and there is a lot to fit in.  I’ll start with the subject that has constantly drawn the most readers to this blog – bundles. This year is no exception, the post on the new Practice Direction on Bundles has been the most widely read post of the year.

JANUARY: ELECTRONIC BUNDLES ARE NOT NECESSARILY THE ANSWER

There was a warning to anyone considering the use of electronic bundles at trial contained in the judgment of Mr Justice Birss in Invista Textiles (UK) Ltd & Anor v Botes & Ors [2019] EWHC 58 (Ch). This was considered in “Sort this out or the court will go back to paper bundles”

1. A feature of the cross-examination of all the witnesses was the use throughout the trial of an electronic document presentation system instead of a paper bundle. Having evidence available in an electronic form is very useful but can be done much more simply than this. I was not convinced the presentation system was helpful or worth the trouble it involved. Real flaws in the approach to cross-examination based on documents took place. For one thing the system often had an appreciable delay, not always obvious to the cross-examiner, which meant the witness and the cross-examiner were at cross-purposes. More significant was the way witnesses were given a single screen on which a single page being referred to was displayed in front of them. The display would frequently flash to a different page, often without warning, and often before the witness had a chance to digest it properly or understand its context. I am sure the witnesses did not always read the text as carefully as they would have done if they had some personal autonomy which allowed them some control of the text in front of them. That is the kind of autonomy a paper bundle gives a witness but it need not be on paper if the witness has some control over what is on their own screen. When it was clear this was happening I intervened to allow the witness to have a chance to read the material properly. Otherwise there would have been real unfairness. Unless such systems improve I will in future require witnesses to be given a paper bundle.”

The upshot was a trial bundle comprising 35 lever arch files. The chronological bundle, comprising 28 files, contains more than 8,000 pages. If I understand it correctly, the structure appears to be that 19 files, labelled F1-F19, contain documents from Cs’ disclosure and Ds’ disclosure before the PTR. These total some 6,000 pages^[1]. Of these pages, very many are in colour, not a few pages are wholly redacted and are entirely black or blank, and others have redactions rendering them unintelligible or useless as evidence. There are also a number of photographs, including photographs of tailors having nothing to do with these proceedings, which are of no assistance to the issues in this case

The Claimant should have cut their case to suit their cloth. 

JULY: NO DOUBLE SIDED BUNDLES IN THE COURT OF APPEAL

Although double-sided bundles are required at trial difference rules apply in the Court of Appeal. This was considered in  “Double Sided Bundles – a Must at Trial – a No, No in the Court of Appeal (Does Nobody Think of the Trees)”

SEPTEMBER: BUNDLE PROBLEMS IN THE SUPREME COURT

September saw a major constitutional case being heard by the Supreme Court and, needless to say, there were problems with bundles. Lord Pannick. The legal Twitterati were quick to notice…

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”

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

OCTOBER: BUNDLES AND SEWAGE – A HEADY COMBINATION

HHJ Russen (QC) (sitting as a High Court Judge) in Kivells Ltd v Torridge District Council [2019] EWHC 2846 (TCC), had to make decisions about an animal effluent treatment plant.  That was not the judge’s only problem.

“The trial bundle included a huge amount of contemporaneous documentation comprising some 5,000 pages (volumes 6 to 23, with an additional bundle “Y” to include some additional documents of that type, as well additional expert evidence, produced during the course of trial). I regret to say that the task of preparing this judgment has led me to realise quite how unnecessary it was to have a trial bundle of this size for a dispute over sums which are obviously significant for each side but not that great in the context of modern commercial litigation. “

“Bundles, Experts, Absent Witness, Unpleaded Defences and… Sewage: All Modern Litigation is Here”