“E-MAIL EXCHANGES COULD BE 2,000 OR 4,000 PAGES APART”: A JUDGMENT ABOUT BUNDLES (WHERE YOU CAN SEE SOME FAIRLY GRUMPY CORRESPONDENCE)

In Bailey -v- Stonewall Equality Ltd, Garden Court Chambers & others the Employment Tribunal awarded £20,000 costs against the respondents (in what is normally a no- costs regime) because of the chaotic way that the application bundle had been presented.  The judgment provides an insight into the nature of the correspondence that took place in relation to preparation of the bundle. There was, the tribunal observed, a marked “failure in courtesy” on many occasions.

“We also considered that at several stages the respondent’s accusations and attitude to the claimant’s solicitor was unmerited and unhelpful, though for a time the claimant’s team kept going with stoic goodwill. We could allow that tempers may run high in the frustrations of working under pressure, but at any rate until the third week in March we considered the claimant was sinned
against than sinning.”

THE CASE

The applicant barrister was successful in a case against her chambers alleging discrimination (she was not successful against Stonewall). She was awarded damages.  The tribunal then considered the issue of costs.  It refused various applications for costs made by the parties. However it did allow a sum of £20,000 for the additional costs caused by the respondent’s preparation of the hearing bundle.

THE BUNDLE IN THE INITIAL JUDGMENT

The state of the bundle was mentioned in the main judgment on liability. 

The main hearing bundle was exceptionally difficult to work with. Despite the
guidance on preparation of electronic bundles in CPR, the Employment
Tribunals Presidential Direction, Employment Judge Stout’s explicit directions
in earlier case management hearings, and the time the case had taken to
come to hearing, it seemed to have been randomly thrown together. Sections
were not OCR readable. Over 600 pages of Garden Court disclosure were not
in the main index but in a 13 page sub-index inserted between pages 374 and
375. Five other sub-indexes had been grafted in, but did not reach the tribunal
until 18 May. Pagination from earlier bundles had not been removed,
complicating the search function. Pages had been inserted sideways. Email
exchanges could be 2,000 or 4,000 pages apart. There was frequent
duplication of the same emails or tweets. An additional 116 pages (“section L”)
did not reach the tribunal until 20 May. The supplementary bundle was added
to more than once, and additions not always notified to the tribunal

THE JUDGMENT ON COSTS

The respondent had been given the task of preparing the bundle.  The judgment on costs gives a fascinating insight into the (sometimes grumpy) correspondence in relation to the bundle.

22. Paragraph 19 of our reasoned judgement in this case was strongly critical of
the main hearing bundle. Tribunals often have to work with imperfect bundles,
perhaps because litigants in person have been uncooperative or do not
understand the process, perhaps because representatives, qualified or
unqualified, have forgotten the practice directions or were never aware of them
in the first place. Looking at the specific criticisms we made, of course sideways
pages can be rotated, and this is manageable if there are not too many of them.
By itself, if only a few pages, it is the easiest to manage. On the other criticisms,
sometimes, parties forget to OCR their documents, but the tribunal panel can
do this for themselves if they can find time (though one of this size would take
a long time), but none of the panel had ever come across a bundle where large
parts could simply not be made OCR readable. We learned in the costs hearing
that this was probably because of repeated copying and scanning. Email chains
are often problematic – it is best to eliminate duplication, but this cannot always
be achieved where it is necessary to show who is sending an email in reply to
what, and in what sequence, especially where there are branching emails, and
not everyone has sight of other replies. Pragmatic solutions have to be found.

22.An important difficulty in this case was the omission from the main index of very
large numbers of documents, which led to the sub-indexes we mentioned.
Another was the late addition of substantial numbers of documents. The
tribunal did briefly consider putting back the start date in the hope of getting a
better bundle, but decided it was better not to lose more time. All of these
imperfections occur from time to time, but rarely together or in such quantity. It
was unfortunate that this bundle contained so many imperfections, and was
needed for a complicated claim with a long hearing.

23.That said, we have to bear in mind that an order for costs is not intended to
punish a party for making the task of the tribunal difficult. Its purpose is to
compensate another party for the additional work caused by unreasonable
conduct. We must decide the costs application without ill will on our part
because we found the bundle so difficult to use.

24.We also observe, based on experience, that the process of putting together a
bundle can be frustrating to one or both sides. The close examination of which
documents should go in can lead to requests for further disclosure, or argument
about relevance, which can get heated, particularly as the hearing date
approaches and pressure builds up. Small lapses at this stage might be
overlooked. What matters is that the tribunal and the parties end up with a
workable bundle in time to prepare for trial.

25.In an uncomplicated case it is manageable, though not ideal, if the bundle is
late, as the parties are already aware of most of the contents. In a complex
case like this one, involving a number of different complaints, and more than
two parties, it matters much more.

26.The claimant submits that because of late delivery of the bundle, still with
substantial imperfections, the claimant was deprived of the opportunity to get
written advice from counsel about the merits of the case, and counsel had to
spend an enormous amount of time, even when on a pre-booked holiday, round
which the hearing timetable had been set, because he was not to return until
four days before the hearing start, resorting and re-preparing witness
statements and cross-examination. In addition it was submitted that her
solicitors, also had to invest substantial additional time in trying, over most of
three months, to cooperate with the respondent’s solicitor who was unhelpful
and uncooperative, occasionally abusive, would not pay attention to the
difficulties identified, continually modified the index, and supplied draft bundles
not matching the current index.

27.The case management orders made in April 2021 provided for a hearing bundle
by 10 September 2021 and an exchange of witness statements on 1 October,
a deliberately long lead time before the final hearing set for May 2022. That
timetable was set back because of the claimant’s successful application to
amend to add a claim of direct discrimination and victimisation because of
protected belief. She had not made such a claim before because she was
deterred by the first instance decision in Forstater in December 2019 that a
belief in gender critical views was not protected; she changed her mind about
making such a claim when it was overturned on appeal in July 2021, though
she was still not prompt in applying to amend (see discussion of time limits in
the liability judgement). The timetable was reset in October 2021, providing for
a trial bundle by 17 January 2022, and an exchange of witness statements on
21 February 2022.

28.Carriage of the bundle lay with Garden Court: this is a conventional direction in
the employment tribunal, where claimants often lack the knowledge or
resources for the task. In a case like this where the claimant was represented,
an order could equally have been made that her solicitors should put the bundle
together. In such cases respondents sometimes ask that the claimant manage
the bundle on grounds that they are bringing the claim and should bear the
expense.

29.In December 2021 there was concern about the completeness and adequacy
of disclosure by the second respondent, and the claimant made an application
which was heard by Employment Judge Stout in January 2022. She ordered
disclosure statements, and further disclosure, as soon as possible.
30.Garden Court’s solicitor began work assembling a trial bundle on 12 January
2022. The claimant says this was not enough time given the size and
complexity, when the list had to complete and agreed by 17 January.

31.The claimant was sent a draft index to trial bundle, but the correspondence
during January 2022 shows that they could not work out from this index whether
all the documents were included. As early as 13 January the claimant’s
solicitors said they needed to include some email threads, rather than individual
emails, and that they were marking up in their response to the draft list the

names of these, and sending PDFs of them. On 18 January (when the
respondent proposed postponing work on the bundle because of the recent
disclosure order against the second respondent) the claimant said that they
were not just replacing documents already in, but adding documents omitted.
The following week they were renaming them to suit the claimant’s convention.

32.On 25th January Garden Court’s solicitor wrote that she did not agree about the
ordering of emails: “I will not be replacing single emails with your threads. That
would result in a complete rewrite of most of the bundle”. The claimant’s
solicitor proposed as a solution duplicating only where the email thread
diverged, and went about separating them to do that. The respondent only
allowed limited time (to the end of January) for that. She also again required
renaming the claimant’s documents to fit the respondent’s convention.

33.At the same time there were problems with the first respondent (Stonewall)
having disclosed 1,600 pages pursuant to a recent order, wanting to redact
copies of their documents being placed in the public bundle, and only allowing
a few days, to the end of January, for claimant access to the documents on
their server.

34. There were also two extensions agreed for Garden Court to serve a disclosure
statement for the second respondent, with more documents being sent. A last
batch was sent on 9 February.

35.Much later it became clear that much of the puzzle over missing emails was
because Garden Court had severed (“chopped up”) strings of emails to show
separate emails in chronological order, and then pasted them in a single
thousand page PDF. It was only when this was uploaded to a shared drive on
16 March that the claimant was able to see that, and that it did not include what
was, in their view, relevant material.

36.Another difficulty was the parties’ different naming conventions. The claimant’s
team had registered her documents in its own programme with titles and dates
that could then be ordered chronologically by computer. The respondent had a
different system. Initially cordial correspondence shows the respondent asking
the claimant to rename their documents and the claimant attempting to comply,
but finding this extremely laborious as it had to be done manually – this started
1 February 2022.

37.From this point on 2 February we can see that relations deteriorate. Despite
courteous exchanges about particular points, and the need for Stonewall
redactions holding up work on the joint bundle, the respondent’s solicitor wrote
complaining that the claimant solicitors were not cooperating constructively:
“your input has been slapdash and lacking in proper care and thought
as to the relevance or irrelevance of many of documents that should
be included in the bundle. This has wasted my time many hours I’ve
spent/wasted nine hours on 2 February just sorting through your
second tranche documents and updating the bundle which also
included documents are duplicated, mislabelled, emails wrongly
timed, relevance unclear and all corrupted”.
38.The process was interrupted by some tough correspondence from the
respondent about disclosure by the claimant of her earnings, and a query from
the claimant’s solicitor (7 February) about the further disclosure ordered from
Garden Court. On 8 February the respondent complained that the claimant
was going back on what had been discussed five days earlier. She said: “you
twist and manipulate words after the conversation. You change emphasis on
meaning and don’t explain the proper context. I am particularly concerned that
your litigation style or tactic and a constant quest to turn email and further
conversations into applications or point scoring for you and/or your client”.
Lengthy correspondence about the claimant’s earnings and the schedule of
loss followed.

39.By 14 February respondent was back to the task of completing the index to
the bundle. By 24 February the claimant asked to see the bundle itself, not
just the index, because of the difficulty marrying it up between their documents
and what was on the index, because of naming conventions and single emails.
The respondent promised a copy bundle: “early next week”. She took up the
claimant’s offer to insert missing materials themselves and commented it was
“extremely regrettable that Garden Court were somehow tasked with putting
this bundle together because it has been a monumental and disproportionate
task”. (On 14 March there is similar complaint, adding that her having carriage
of the bundle was presumably made at the insistence of the claimant to save
her costs.)

40.On 1 March the respondent sent a draft bundle but said that her assistant,
Ella, was still adding documents to the bundle and it was better that the
claimant’s team sent the documents that they wanted included, so they could
be added.

41.Having seen the draft bundle as well as the index, and identified the difficulties,
particularly with insertions to earlier pagination, given the current naming
convention, the claimant proposed a shared drive, so they could see what was
there, so that when the content was agreed it could be merged into a bundle.

42.On 2 March we can see discussion over the 1000 page PDF – the respondent
objecting to the claimant wanting to add these emails separately, complaining
that the claimant had not “done the groundwork” in renaming documents and
inviting the claimant to add material. On 3 March the claimant’s solicitor
queried omissions particularly items in the index but not in the bundle,
suggesting Garden Court sent them any more documents and they would do
an index. Then they wrote saying they had set up a shared drive, but Garden
Court was concerned about confidentiality and did not want to use it. On 9
March, after a short and irritable reply to a long and careful email from the
claimant’s team offering to include material, with a renewed plea to see the
bundle itself, Garden Court stated they would prepare the bundle with what
they had, and any additions by the claimant must go in a supplemental bundle.
The claimant should have renamed her document so Garden Court could see

if they were duplicates. The claimant’s team renewed their offer, pointing out
that Garden Court had only Ms McGuigan and Ella, while they had more
resource, and renewed their point about singe emails and threads. On 10th
March Garden Court’s solicitor accused her opponent of “non-cooperation and
deliberate stalling”, complaining she had not had promised additions. It seems
they had been on the shared drive for a week. On 11th March the respondent
solicitor said that she had not been able to go through the previous day’s
emails about the bundle and she did not have time, so the bundle in the
respondent’s current form was paginated and distributed. Any other
documents would have to go to supplementary bundle. We see that on 10
March there was folder marked “renamed” on the drive (by this point
Stonewall’s solicitors, CMS, had set up a neutral share drive to overcome
objection to using the claimant’s drive). We can also see that the claimant’s
team recognised that as it was difficult to recognise that bundles from the
index, it would help to see the draft bundle itself, so they can actually see what
was in it. By the end of 15 March the claimant’s solicitor sent a clear request
to see the bundle as it stands” with an offer to “collate the documents into a
single coherent, bookmarked and indexed pdf bundle”, and a suggestion that
they should focus on getting a bundle prepared rather than disputing what
went in it.
43. There are a number of such requests, on 15 March, when the
correspondence became extremely acrimonious. Neither included documents
provided by the claimant at the respondent’s request. The claimant’s solicitors
renewed their offer to step in and help. This was rejected. A later email said :
“It’s a bit late in the day for you to be taking objection. You have been missing
in action for a month and now pipe up with demands. No!” The response was
another request to see the bundle so they could see what could be done.

44.A bundle in version 17 was uploaded on 16 March, mainly unindexed, with the
single 1000 page PDF with ne line in the index, and another 650 pages without
an index. By 21 March Garden Court ‘s solicitor said they were still part way
through completing the bundle, they should contact Ella about it. On 22 March
the claimant’s solicitors are complaining of the difficulty of checking a 5,000
page bundle when the index did not match and 1,000 pages were not indexed.
The respondent sent the index on 17 March which did not cover the 1000
pages, the respondent then uploaded version 16, not the version 17 that was
being reviewed. The claimant’s solicitor decided they should take over
carriage of the bundle and wrote saying they would be asking the tribunal to
order this. They had had to prepare their own bundle for the purpose of
finalising witness statements and for counsel.
45.Ms McGuigan for the respondent solicitor objected that this was “ludicrous”.
On 21 March she said his conduct over the bundle merited
46.Doyle Cayton (for the claimant) stated in their application to the court to take
over the bundle, that 167 pages have been left out, for unknown reason. A
section of 2,980 pages was not in the index, and was not bookmarked. The
incomplete index made it difficult to identify precisely what was left out, strings
of emails had to be included so as to see who was writing to what – at present
they had been severed and included as single pages. Page numbers on the
index did not match the pdf documents, which mattered now this was to be an
online hearing. Insisting on putting a date at the end of the main modern
beginning made it difficult to sort documents into the bundle chronologically.
Documents are sometimes arranged by theme, but at times by chronology.
Section H appeared to have no order at all.

47.There was an correspondence to the tribunal on the rights and wrongs of what
each was doing. The respondent accused the claimant of “wilful failure to
cooperate”. At this point the claimant’s solicitors sent an open letter, marked
costs warning, asserting the respondent’s solicitor had been unreasonable in
its to approach to putting the bundle together. There were unilateral refusals
to solve the strings of emails, manually renaming every document in a less
useful formula than the claimant was already using, refusing to access the
shared drive, though another party had been able to offer a drive, making false
statements to the tribunal, using rude and intemperate language, and not
expressing the clear and subtle position, so they constantly had to “recalibrate”
what they were being asked to do. It had to increase the number of fee earners
devoted to the project.

48.In further acrimonious exchanges Peter Daly for the claimant told Ms Guigan
she should cease flogging the dead horse of their “failed bundle” and let them
move ahead with theirs. In another, after setting out some of the problems and
proposed solutions she he said “this is not a “bundle wars” and it is not a
personal criticism. I absolutely understand you have put a huge amount of
effort into this, and I also understand your unwillingness to give up on what
has been done. But the work you’re going to have to do to get this ready
cannot be done on our trial timetable”. He later explained that searching the
unindexed sections to see what was there were hard because it was not
OCRd.

49.On 24th of March (the day Mr Daly said he had to send the bundle to counsel
you are a) Ms McGuigan (Garden Court) said that she had uploaded a new
bundle, adding some documents, disputing others, and she invited the
claimant to find a solution to the 1200 page PDF. They could only suggest a
separate manual index, with manual pagination. There is a great deal of
correspondence from 24 March which makes sorry reading. It is largely
unacrimonious, but the respondent seems unwilling or unable to recognise the
problem.

50.At the hearing on 28 March and Employment Judge Stout made decisions on
disputes about what should go in the bundle and where they should be placed.
On the question of who should continue to deal with the bundle she ruled:
“the Garden Court correspondents are to retain carriage of the
bundle provided that they are able to prepare it in compliance with
paragraph 7.2 my order 19 April 2021 and in compliance with the
presidential guidance on remote and in-person hearings (14th of
September 2020), in particular that the bundle is OCR readable and
the electronic PDF page numbers match the printed page numbers.

If that is not possible then respondent should hand responsibility for
preparation bundle to the claimant”.
She then directed the whoever prepared the bundle, documents should be
in chronological order not by issue, only one copy of each email should be
included, and it should be possible to see who sent which emails, where
they are in chains. Nevertheless, parties may have to accept imperfections.
The bundle had to be finalised by 1 April. Witness statement would be
exchanged by 8 April.

51.It was suggested to us that this order indicated that Garden Court were not be
criticised for their conduct, as they were not told to hand over carriage of the
bundle. It seems to us that the “provided that” was a stern indication that so far
it was not good enough, and might yet have to be handed over. We can also
observe that in several respects the final bundle did not comply with
Presidential guidance or Judge Stout’s orders.

52.Although we do not have the detail, we are told that the bundle sent on 1 April
still incomplete. Presumably that is why there was a second bundle which was
still being added to during the hearing.

53.The details set out above is but partial – the correspondence covers about 950
pages.

54.We concluded that the process started well, but that the respondent for
whatever reason did not recognise the difficulty of some of the points the
claimant was pointing out, for example the £1000 page PDF, the naming
conventions, and more particularly, that they need to see the draft bundle so
as to be able to recognise what was in and out as the index was so difficult. We
were not clear why the respondent was so slow to use a shared drive, even
when provided by Stonewall’s solicitors. It was obviously unhelpful to provide
indexes and bundles that did not match up, and on different dates. The
respondent’s solicitor may not have been responsible for some of the
difficulties (for example, using different naming conventions) but that they were
too often unhelpful in not looking for constructive solutions, insisting simply
going on doing it their way, seeing all suggestions as unwarranted interference.

55.During this time the solicitors were not always engaged in discussion about
putting the bundle together. A lot of the correspondence was about whether
more documents should be disclosed (particularly on detriment one) and about
the relevance and inclusion of other material, which are ultimately led to the
applications to the tribunal heard on 28 March. If we decide to make an award
for costs, these costs should be discounted.

56.We also considered that at several stages the respondent’s accusations and
attitude to the claimant’s solicitor was unmerited and unhelpful, though for a
time the claimant’s team kept going with stoic goodwill. We could allow that
tempers may run high in the frustrations of working under pressure, but at any
rate until the third week in March we considered the claimant was sinned
against than sinning. We were invited to find that he patronised the respondent

solicitor by accusing her of having a tantrum. We did not consider that this was
insulting to women, rather than men, and moreover was the only example of a
failure of courtesy of which she was repeatedly guilty. Some derogatory
language under pressure, though deplorable, is not of itself unreasonable
conduct, but it tends to underline what was (not) going on, which in our view
was unreasonable conduct. There were some real problems in how the bundle
was being put together. The respondent’s solicitor was not prepared to address
them in a constructive way, sometimes not at all. We can only speculate as to
whether this is caused by a lack of resources (and she probably was without
staff), or personality. The latter comment is prompted by her complaints that
she should not have to be putting the bundle together followed by stubborn
refusal to allow the claimant to take over. She may not have appreciated the
difficulty if the unindexed parts or the 1000 page pdf at first, but the problem
was explained to her more than once. When confronted with difficulties which
required solution she insisted on continuing in her own way, even when
solutions were proposed. She did not adopt one straightforward solution which
would be to send a bundle matched her index. As we have said, difficulties in
putting a bundle together are not unusual. What was important in this case is
that it was extremely complex, there was a very long trial coming up, the
constant delay made it very difficult for the claimant (and possibly respondent
too) to make adequate preparation for trial, and the respondents solicitor’s
response to constructive suggestions and courteous requests was to plough on
until (as it proved) it was too late to achieve a usable bundle or for much of the
witness statements to be cross referenced to it.

57.Stepping back from the detail, we considered whether there was unreasonable
conduct in the preparation of the bundle. We concluded that there was. As set
out, in several respects it went well beyond normal disagreement.

58.We then considered whether we should exercise discretion to make an award
of costs. We concluded that the serious impact, on the claimant’s team at any
rate, of late preparation for hearing meant that it would be just to make an order.