AN ELECTRONIC BUNDLE SHOULD BE CONFINED TO “ESSENTIAL” DOCUMENTS: IT HELPS IF COUNSEL HAS A SAY IN ITS PREPARATION: IMPORTANCE GUIDANCE FROM THE HIGH COURT

In the judgment given this morning in  Tailby , Re TPS Investments (UK) Ltd [2020] EWHC 1135 (Ch) HHJ Cox QC (sitting as a High Court Judge) gave some importance guidance in relation to the preparation and presentation of an electronic bundle.

“The intention underlying the use of the word “essential”, and the rationale for the restriction, was to relieve the burden cast, not only upon the judges of assimilating material in often user-unfriendly electronic bundles, but also upon the legal professionals, and any support staff, responsible for compiling the electronic bundles, by reducing the volume and scope of the documentation to be included within them”

THE JUDGMENT ON THE BUNDLE

His Honour Judge Hodge QC:

1. 1. This is my judgment on an application (pursuant to paragraph 76(2) of Schedule B1 to the Insolvency Act 1986 (as amended)) made by the sole administrator of TPS Investments (UK) Limited for a nine months’ extension to his term of office (to 10 February 2020). It is supported by the 8^th witness statement of the administrator, Mr Mark Graham Tailby, dated 8 April 2020, together with Exhibit MGT 8, and a short witness statement from Mr Hope Wilson, a trainee solicitor, dated 23 April 2020 evidencing, and exhibiting (as Exhibit HW1), emails from the legal representatives of the company’s secured creditor, and also the entities asserting a prior interest in the company’s assets, indicating their consent to the proposed extension and confirmation of their non-attendance at the hearing. Beyond the fact that this is the fifth application to the court for such an extension, there is nothing unusual about the present application, which is not opposed. Mr Ian Tucker (of counsel) appeared for the applicant. The application was listed for 30 minutes in the Applications List in Manchester at 10.30 am on Thursday 7 May 2020. In the usual course (prior to the extended hearing times required for remote hearings due to the Coronavirus pandemic), it would have been listed for about half that time; and I would have proceeded immediately to deliver a short, extemporary judgment setting out my reasons for acceding to the application. But there is nothing usual about the present times. At the conclusion of the hearing, I announced that I would grant the application but that I would reserve my judgment, to be handed down remotely at 10.30 am on the next court sitting day, Monday 11 May, because I wanted to incorporate some general guidance on preparation for the remote hearings of short applications. I emphasise that nothing in this judgment is intended to be in any way critical of the legal representatives in this, or in any other, case. Rather, it is intended to be of assistance to the legal profession generally in the difficult circumstances in which this court appreciates, and acknowledges, that they are currently operating, in many cases at home and away from their offices and chambers, and without their usual support staff and machinery.

   2. On 19 March 2020 the Lord Chief Justice delivered a message (Civil & Family Courts – Covid-19) in which he said that:

“We have an obligation to continue with the work of the courts as a vital public service, just as others in the public sector and in the private sector are doing. But as I have said before, it will not be business as usual … The rules in both the civil and family courts are flexible enough to enable telephone and video hearings of almost everything … The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely …”

Since then, all those who contribute to the administration of justice – the legal professions (barristers, solicitors, legal executives, para-legals and support staff), the court staff and the judges – have been working immensely hard, and with great initiative and creativity, to ensure that, even if it is not “business as usual”, the Business and Property Courts nevertheless remain able to continue to transact the business of dispensing justice. To that end, the Business and Property Court Judges in Manchester have issued guidance on hearings before the s.9 Specialist Circuit Judges and District Judges during the Covid-19 Pandemic. At paragraph 7 it is clearly stated that;

“Unless otherwise proposed or directed, electronic bundles should contain only the documents which are essential for the hearing …” [Emphasis supplied]

The word “essential” was chosen advisedly, in preference to alternative formulations, such as “that which is reasonably required”, which appears, for example, in CPR 35.1 (the duty to restrict expert evidence). One (accurate) dictionary definition of “essential” is “indispensable or important in the highest degree”; and that is the notion which the guidance was, and is, seeking to convey. The intention underlying the use of the word “essential”, and the rationale for the restriction, was to relieve the burden cast, not only upon the judges of assimilating material in often user-unfriendly electronic bundles, but also upon the legal professionals, and any support staff, responsible for compiling the electronic bundles, by reducing the volume and scope of the documentation to be included within them.

1. 1. How is the instruction to restrict the electronic bundle to “only the documents which are essential for the hearing” to be followed? It seems to me that this is probably best achieved by engaging the advocate who will present the application in court at an early stage of the process of preparing for the hearing. Only they can know how they will wish to present the application to the judge, and what material will be required to this end. When I first started in practice at the Chancery litigation Bar in 1980, it was still (just about) common practice for trial counsel to be instructed to prepare an Advice on Evidence before the preparations for trial had begun. Under the current practice, trial counsel are frequently involved in advising on witness statements for trial. In the relatively new world (for some) of electronic bundles and remote hearings, if counsel is to be briefed to present the application, then they should be retained in sufficient time to enable them to advise as to the contents of the electronic bundle. Under the current guidance (now helpfully set out in the Covid-19 Notice at the top of the revised standard-form Manchester Chancery email acknowledgment):

” …

2. Electronic bundles should be emailed to the designated email address for hearings given by the Judge no later than 3 business days before the hearing.

3. Skeleton Arguments and copies of authorities should be emailed to the designated email address no later than 2 business days before the hearing.

… “

The reason for these time limits is that the skeleton argument will need to refer to the relevant pages of the electronic bundle; but that should not dictate the time at which the advocate is first retained for the hearing, or prevent him from having any input into the contents of the electronic bundle. Paragraph 3 of the Manchester Judges’ guidance already strongly encourages the parties

“… to discuss and agree the best means for holding a remote hearing (including the provision of electronic bundles, skeletons and authorities and for recording the hearing) and, so far as possible, to do so before any application or request for a hearing and well in advance of any scheduled hearing.”

This is all part of the parties’ duty (under CPR 1.3) to “help the court to further the overriding objective”.

1. In the instant case, for an unopposed hearing listed for thirty minutes, all that it was essential for the court to receive were the application notice itself, the administrator’s supporting witness statement (with its exhibit) and the short witness statement of the trainee solicitor, exhibiting emails from the legal representatives of the company’s secured creditor, and the entities asserting a prior interest in the company’s assets, indicating their consent to the proposed extension and confirmation of their non-attendance at the hearing. Instead, the court received a “Core” bundle (in PDF format) of some 105 pages, which included no less than four previous witness statements from the administrator (his 3^rd, 5^th, 6^th and 7^th), made in support of the four previous applications for extensions of his term of office. The respective exhibits to the various statements were apparently contained in a shared file, and the court also received (by separate email) an invitation to access the shared file (although the access key was only supplied by a further email sent a day or so later and, when the court tried to use it, the court was unable to access the shared file). None of this might have mattered had the “Core” Bundle been readily accessible, but it was not. There was no searchable contents tab. There was no sequential page numbering throughout the bundle. Rather, each of the documents – the application notice, the two alternative draft orders, the six witness statements, and the 52 pages of copy correspondence – were each separately paginated, making it impossible for the court to scroll down and identify any particular document by the page number within the PDF file. It was only with the assistance of the page numbering contained within Mr Tucker’s helpful written skeleton argument that the court was able to identify individual relevant documents within the “Core” Bundle.

2. In summary, therefore, there are two relevant lessons to be learned from the present case. First, engage the advocate who will be conducting the actual hearing at an early stage to advise as to what documents are “essential” so that they can be included, and all other documents excluded, from the hearing bundle. Secondly, provide a searchable index to the bundle if this is possible; but, if it is not, ensure that all the pages of the bundle (including any index and divider pages) are individually, and sequentially, paginated so that it can be readily searchable by scrolling down the file. Any reader not involved in this particular case can stop here.