“ONE PAGE OUT” (BUT SOMETIMES MORE): ELECTRONIC BUNDLES GENERATE DIFFICULTIES- FAILURES COULD LEAD TO SANCTIONS

In Hodgson v Creation Consumer Finance Ltd [2021] EWHC 2167 (Comm) (29 July 2021)  HHJ Pearce, sitting as a High Court Judge, made some observations about the problems caused by the pagination of electronic bundles.  We have the familar problem of the page numbering on the bundle being different to the electronic page and also the printed page.

“Whilst the Courts may have been willing to tolerate problems early in the COVID-19 pandemic, when solicitors were struggling with new challenges, including a lack of the traditional support from those who might assist with preparing bundles, as well as the sudden need to get to grips with the challenges of preparing electronic bundles in all cases, there has been plenty of opportunity by now to get to grips with those challenges. I repeat that most court users have done. Those who have not must realise that they are likely to be sanctioned for the problems caused by such failures.”

THE CASE

The judge was determining what was essentially a test case in relation to the mis-selling of rooftop panels.

THE JUDGMENT IN RELATION TO BUNDLES

12.          The Claimant produced three electronic bundles of documents for trial. The first contained the statements of case, witness statements, orders and key document. The second contained correspondence in chronological order. The third somewhat confusingly contained previous skeleton arguments, more documents and more correspondence. The contents of the third bundle may be explained by the contents only coming into existence or coming to light after the first two bundles had been prepared. However, what cannot be properly explained (or at least justified) is the pagination of the bundles. In each case, the bundle as provided to the court started with an index. These pages were not paginated on their face. Thus, in the first bundle, when one reaches the page that bears the number 1, the electronic page number is 3, so the page numbers are for a short section two out. Later on, three pages are incorporated into the bundle containing the Schedule of Loss. These are numbered 15a, 15b and 15c. Thus when one gets to the page which bears the printed number 16, one is on electronic number 21. Thereafter the pages are 5 out. In second bundle, the two page unnumbered index renders the rest of the bundle 2 pages different than the electronic numbering. In the third bundle, the introduction of a one page unnumbered index renders all of the other pages one out.

13.          These discrepancies create considerable difficulty for advocates, witnesses and judge alike. Inevitably some people prefer to use paper bundles, other electronic bundles. The confusion causes delay and adds an extra burden to ensure that everyone is looking at the same page.

14.          It is essential that electronic page numbering in bundles matches the numbering which is printed on the page. The need for this is repeatedly emphasised in court guidance, whether in the Supreme Court (https://www.supremecourt.uk/procedures/electronic-bundle-guidelines.html) the Administrative Court (https://www.judiciary.uk/wp-content/uploads/2021/05/ACO-Bundle-Guidance-26-May-2021-2.pdf) or the Business and Property Courts in Manchester (Guide-to-preparation-and-service-of-bundles-etc.pdf (judiciary.uk)). Most court users are having no difficulty in complying with this guidance. A few are, as demonstrated for example by the judicial comments in DRSP Holdings Ltd & Anor v O’Connor & Anor [2021] EWHC 626 (Ch) and Global Technologies Racing Ltd v 5 West (t/a Alex Thomson Racing [2020] EWHC 3334 (Comm). Whilst the Courts may have been willing to tolerate problems early in the COVID-19 pandemic, when solicitors were struggling with new challenges, including a lack of the traditional support from those who might assist with preparing bundles, as well as the sudden need to get to grips with the challenges of preparing electronic bundles in all cases, there has been plenty of opportunity by now to get to grips with those challenges. I repeat that most court users have done. Those who have not must realise that they are likely to be sanctioned for the problems caused by such failures.