TALES FROM THE LEGAL ACTION GROUP HOUSING LAW CONFERENCE (1): BUNDLES (OF COURSE): WHERE DO EXHIBITS TO WITNESS STATEMENTS GO IN THE TRIAL BUNDLE?

I spent last Friday slightly outside my comfort zone lecturing at the Legal Action Group Housing Law Conference, some aspects of which will feature in future blog posts.  Needless to say all the housing lawyers were lovely and I went to some sessions that were interesting and outside my usual practice areas.  There were some profoundly important matters being discussed in relation to homelessness, housing and disrepair.  However I want to start my personal review by returning to this blog’s most constant topic – bundles.

“Where documents are exhibited, the exhibit should not be included in the trial bundles in that form. The documents in the exhibit should be included in the trial bundles in an appropriate location (or locations) which should be cross-referenced from the witness statement in the trial bundles“

MEETING THE JUDGES

I don’t like the idea of compulsion, but sometimes I think that every litigator should be forced to attend a session where judges speak on the things that they find helpful, and unhelpful, in the conduct of litigation.  The Conference ended with short talks from HHJ Tracy Bloom, DJ Ian Greenidge and DDJ Jensen Lam.  The major theme of what was being said was:

• It helps when litigator’s actually read the orders that are sent out.
• It helps even more when the orders are actually complied with.
• Bundles sent to court should comply with the Practice Direction.
• The litigator needs to ensure that copies of the bundle are available for the witness in addition to the judge.

This is a short (and unfair) summary of many of the points made in a full an interesting session, but – perhaps inevitably –  it was a question about bundles that drew my attention.

WHAT DO YOU DO IN A BUNDLE WHEN A WITNESS EXHIBITS NUMEROUS DOCUMENTS?

The question asked of the judges was – what should happen when a witness statement exhibits numerous documents.  Should the documents be exhibited to the statement in the bundle and also appear later on in the documents section?   The judges were not in favour of the idea of documents appearing twice in the bundle and discouraged that approach.

Surprisingly the best guidance on this can be found in the Chancery Guide and the Commercial Court Guide. Unsurprisingly this may not be the normal reading material of housing lawyers.

THE  CHANCERY GUIDE

The Chancery Guide strongly recommends the separating of witness statements from documents. The section on General Guidance on Bundles

“(b) where there are witness statements, affidavits and/or expert reports from two or more
parties, each party’s witness statements etc should, in large cases, be contained in
separate bundles; any exhibits of contemporaneous documents should be excluded
from these bundles and their contents instead included with other contemporaneous
documents;”

PARAGRAPH 8

Documents referred to in witness statements

8.7 Paragraph 3.4 of the Appendix to PD 57AC provides that a trial witness statement
should refer to documents, if at all, only where necessary. Where it does so, the
document should not be exhibited, but a reference should be given enabling the
document to be identified. The same approach should generally be adopted for trial
witness statements where PD 57AC does not apply.
8.8 For these purposes, the disclosure numbers assigned on disclosure should be used
(defaulting to the claimant’s disclosure if a document is disclosed by more than one
party) unless otherwise agreed.
8.9 If a document has not previously been made available on disclosure, it may be
helpful for the document to be exhibited to the witness statement. However, the claim
form, statements of case, other witness statements, orders of the court, and
judgments should not be exhibited, nor should documents already before the court.
8.10 Where documents are exhibited, the exhibit should not be included in the trial
bundles in that form. The documents in the exhibit should be included in the trial
bundles in an appropriate location (or locations) which should be cross-referenced
from the witness statement in the trial bundles

THE COMMERCIAL COURT GUIDE

The Commercial Court Guide has detailed guidance on bundles at Appendix 7:

“… no more than one copy of any one document should be included,
unless there is good reason for doing otherwise;”

“… where there is a reference in a statement of case, affidavit or witness
statement to a document which is contained in the bundles, any copy
of the statement of case, affidavit or witness statement in a bundle
should be marked in a convenient way to identify where the document
is to be found. Unless otherwise agreed it is the responsibility of the
party that served the statement of case or witness statement to provide
a cross-referenced copy for this purpose as part of its co-operation in
the preparation of the hearing bundles; and

(iv) where the method of cross-referencing used in (i) or (iii) above has the
effect of altering the format or length of the statement of case, affidavit
or witness statement as compared to the signed originals to which
a statement of truth was applied, then a solicitor responsible for the
production of the bundles should add to the cross-referenced copy a
short, signed certification that the content is unaltered from the signed
originals except for the addition of the cross-referencing”