ELECTRONIC BUNDLES AND PROBLEMS AT TRIAL: IF PAGES ARE ADDED IT IS NOT PLAIN SAILING

Readers have been waiting, with anticipation, for cases about electronic bundles.   The judgment of HHJ Pearce in Global Technologies Racing Ltd v 5 West (t/a Alex Thomson Racing) [2020] EWHC 3334 (Comm) shows the problems that can occur in relation to pagination.

 

THE CASE

The judge was giving judgment in a case that related to a hydrofoil used on a yacht. It lasted several days and was being heard remotely. There were problems with both the platforms being used for the hearing and the bundle.

THE JUDGMENT ON THE BUNDLE

  1. This action was tried in the Civil Justice Centre in Manchester in July 2020 during the COVID-19 pandemic. The location was considered suitable because of the desire to have a number of people attending court as well as witnesses giving evidence remotely in a so-called “hybrid” hearing. Although this was achieved, there were formidable technological problems leading to it being necessary repeatedly to change the platform on which the remote evidence was taken, and remote participants listened in. This in turn caused significant delays during the hearing.
  2. A separate problem arose from the manner in which the trial bundle had been assembled. An electronic bundle was prepared for the hearing, which was sensibly bookmarked and was OCR enabled as far as possible to allow internal searching. Further the pages were mostly inserted so that rotation was not required to read them. This all accords with good practice, for which those preparing the bundle are to be commended.
  3. It was paginated in ascending numeric order in the conventional way, but with additional pages inserted with an alphabetic suffix. Herein lay the problem. The insertion of such additional pages at various points in the bundle created unpredictable discrepancies between the number physically written on the page and the electronic numbering. Using an electronic bundle, it was only possible to get to the relevant pages by estimating the electronic number and scrolling through. This is a burdensome task, adding to the difficulties in a hearing which was interrupted for reasons identified above.
  4. It is highly likely to be the case that electronic bundles will be extensively used in the Business and Property Courts for the foreseeable future. However, where some people use the electronic version and some a hard copy version, problems arise if the numbers are not the same. In the case of bundle numbering, the obvious solution is to ensure that the electronic page numbering and physical page numbering match. The need to do this is identified in many places, including the Supreme Court’s Practice Direction 14.
  5. In so far as it is necessary to refer to specific documents by page numbers in this judgement, I have used both the electronic and the physical page numbering, in the form electronic page number/physical page number.