BUNDLES: SEDLEY’S LAW REVISITED: HAS MUCH CHANGED OVER THE PAST NINE YEARS?

December 12, 2022 · by · in Bundles, Case Management, Civil Procedure

Nine years after it was first published I am re-visiting a very early post on this blog.  Regular readers will know that the issue of trial and hearing bundles have featured regularly over the intervening period.  It is not uncommon for there to be complaints about the length, or legibility, of bundles.  On one occasion the judge told the parties to take all the bundles out of court and come back the next day, having done them correctly.     The original post was the most read post on this blog each year for half a decade (and is the front runners even now). The basic task of getting a bundle right.   Now made even more complex by the fact that some bundles are electronic.   This can lead to disaster as we saw in the seminal case in the Supreme Court when the electronic bundle was 68 pages out from the paper bundle, leading Lord Pannick KC to have to do some impressive on the spot arithmetic.   Here we have the first part of the original post and then the helpful contributions from people on Twitter.

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

PD 39A para includes a list of what should be included:

“Bundles of documents for hearings or trial

3.1

Unless the court orders otherwise, the claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.

3.2

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

(1) the claim form and all statements of case,

(2) a case summary and/or chronology where appropriate,

(3) requests for further information and responses to the requests,

(4) all witness statements to be relied on as evidence,

(5) any witness summaries,

(6) any notices of intention to rely on hearsay evidence under rule 32.2,

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

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

(b) being given orally at trial,

(c) hearsay evidence under rule 33.2,

(8) any medical reports and responses to them,

(9) any experts’ reports and responses to them,

(10) any order giving directions as to the conduct of the trial, and

(11) any other necessary documents.”

OTHER POINTS RELATING TO THE TRIAL BUNDLE

 The Practice Direction goes on to give other guidance.

 “3.3

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

3.4

The preparation and production of the trial bundle, even where it is delegated to another person, is the responsibility of the legal representative5 who has conduct of the claim on behalf of the claimant.

3.5

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.

3.6

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.

3.7

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

3.8

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.

3.9

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

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

(2) 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.

3.10

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

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”.”

 

CONTRIBUTIONS FROM THE  OTHER NICE PEOPLE OF  TWITTER

 

For those who will share the joy of doing their own copying, learn fast how change the toner and to fix paper jams. Opening and closing a few doors and turning it off and on again is an underrated tactic. Know that the copier will always break down on bundle day.

 

Make sure you check if your pages are double sided before copying and then wondering why you only have odd numbered pages. Hot tip courtesy of 

 14 hours ago

Always always be nice to the copy room and post room staff- you never know when you will need to call on them for emergency help for last minute supplemental bundles/amendments

 

If you’re including a handwritten statement in the bundle (e.g. a police statement or HSE statement), ALWAYS insert an agreed typed version of the statement immediately after it, behind the same tab.

Colour code your bundles with front sheets and spine sheets e.g. red for lay witness evidence, blue for expert evidence, green for documents etc. So much easier for judges and witnesses (“turn to bundle 2, the green bundle”) rather than sorting through 8 identical looking files.

We have put a man on the moon. We have split the atom. But no one has yet invented a lever arch file which can survive the DX: always hand deliver your bundles to court.

 

If we could invent that we would be millionaires..

 

This time next year Rodney…

Check the Court/Judge has received the bundle and you might want to take a spare bundle with you just in case.

I found out at 5pm last night our hearing had been moved. I made a copy of the bundle and took it with me; sure enough, the one sent to the original court last week had not reached the District Judge, who was grateful to receive the one I handed in to the usher on arrival!

 

The stories I could tell about Clerkenwell & Shoreditch and bundles…

 

Sir Stephen Sedley’s eleven laws of documents are real. They apply and lawyers learn quickly that paper cuts can be near fatal.

(1) Bundle prep. isn’t admin but a part of advocacy & it matters. (2) They should be as short as possible. Aim to meet the PDs. (3) If someone else compiles your bundles, check them – pref. before they go to Crt. (4) Prep & check all your references twice. (5) Tab & index well.

(6) Authorities bundles always take longer than you think (remember side-lining for the CA); (7) Be kind to your clerks if they’re doing your copying on a big case. Sending a request for 8 x 65 authorities tabbed & bundles & asking for them in 25 minutes is unrealistic. Plan.

(8) Buy Adobe Pro or another software product that will make compiling & paginating bundles (heading bundles & authorities) quicker & easier. (9) When it goes wrong accept it isn’t the end of the world. (10) If near home, have your clerks room on speed dial.

 

If you’re doing inquests accept that everyone will have a slightly different bundle despite you offering to prepare coroner will have something entirely different & at least one IP will produce a large amount of disclosure you’ve been seeking for 2 years on the penultimate day

 
…and the CCTV might only come on day 2. Possibly. (Not a bundling moan. I know.)
 

It sort of is. All part of the documentary organisation of a case

  1. Only photocopy once you are absolutely sure you have a finalised paginated version (or as close to that as you will get before you must start copying). And always leave more time to copy than you think (I have learned that from experience…)

     

    Paginate before you duplicate.

     

    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…

    Surely somebody would have been checking it twice

     

    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 ??

     

    More

    Ha! Honestly, the number of bundles I’ve had with the top 1/2 of the spine label consisting of a logo, and next 1/4 with the name of all the parties (in full), followed by a tiny “Bundle C/4” … ?… Prob not great for marketing if the judge doesn’t like you, either!

    1.  12 hours ago

      More
      Replying to 

      Surely the answer to a double sided printing direction is to work electronically and invest in a double sided laptop?

    1.  13 hours ago

      More
      Replying to 

      From the other side of the table…as a witness facing cross-examination, I asked Counsel to take me to the relevant page of the bundle each time he asked me a question. Gave me valuable thinking time.

       

      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.”

       

      Go paperless! All the horrors of bundle rage are lessened if you don’t have to wrestle broken lever arch folders full of dead trees.

       

      I have no horror stories but love pagination so much generally I feel the need to join in.

     

    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.

     

    1. Never underestimate how much time it takes to properly prepare and check one (at least twice). 2. If you need to print documents from a computer, always print one copy and then photocopy x times. Do not print ‘x’ copies. If it’s a long document, you will live to regret it…

     

    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…

    1.  

      My. Dude. As a paralegal doing a tonne of bundling, my tip is to require lawyers to provide you with the docs they want included and push back hard on any lawyer that wants you to ‘just find them’. You’ll be rectifying the issues at 1am because it wasn’t what they had in mind.

    1.  

      Upside down pages… Oh yeah…. and instructions to counsel once also inadvertently slipped in…

    1.  

      Less is more. A diamond ring is much more presentable in a small box than it is in a carrier bag full of plastic rings.

     

    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.

    When lovingly arranging correspondence into date order please also pay attention to the year in which each letter was written.

     

    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

    Also, there are only two correct numbers of copies of a document to be inserted in a bundle. Zero and one. (This sometimes gets hard when multiple witnesses exhibit the same document.)
     

    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.

     

    MoreI would just add that I will be the instructing solicitor huffing and tutting behind you if you haven’t memorised my bundle …….?
     

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

     

    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…

     

    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

     

    If you’re working with paper find yourself a big enough space eg. the floor, a meeting room to spread it out. Don’t let anyone disturb you at critical moments. Try colour coding your lever arch files. Read the relevant PD before starting. 2/2
     

    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.

     

    1. If you are in a jurisdiction without practice directions, look at the PDs from jurisdictions that have them; 2. Do not re-start numbering if more than 1 bundle; 3. Abandon chronology at your peril; 4. Comply with any judicial directions; 5. Always use a file not clips or tags

    6. Never print double sided; 7. Make sure docs are legible – if necessary type up the important ones & include your typing up. Make sure photos / maps etc are clear and in colour if that’s helpful; 8. If in a court that loses things, bring spare copies; 9. Go to a few hearings.

    1.  

      Bernard Lewis threw an entire bundle at my at Brentford County Court. Scarred me for life so I became a property lawyer!

       

      Landscape documents must all be copied the same way: top of the document to the middle of the binder – that way when the judge turns the binder to look at it, he/she isn’t leaning over the rest of the binder to see it.

       

      Never be far from an index: each binder should have a 1-page list of its contents on the front cover, and a full copy of the bundle index inside.

       

      Do not ever, ever, EVER put documents in those shiny clear plastic wallets. Not even if you then put them into ring binders. Don’t do it. Seriously. Never. Just say no. You will thank me for this advice one day.

       

      Invest in: Heavy Duty Hole Punchers, bundling software and spine covers. Post-it-Notes cannot substitute for card file dividers, paginate and tab, no more than 3 or 4 bundles in one box?– label inside the bundle for cases where a judge may have two or three bundles open at once

       

      Beware double sided bundles that are reproduced single sided. On the other hand, your case is only half as bad.

       

      Check it and check it again. Do not risk annoying the judge by being lazy. Be aware of double sided pages!

     

    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…