LATE AND “HAPHAZARD” SERVICE OF TRIAL BUNDLES LEADS TO WASTED COSTS ORDER AGAINST CLAIMANT’S SOLICITORS (ON THE INDEMNITY BASIS)

September 16, 2024 · by · in Applications, Avoiding negligence claims, Bundles, Civil Procedure, Conduct, Costs, Wasted Costs

There are numerous cases on this blog about trial bundles.  The issues never seem to end and have not been solved by the advent of the electronic bundle.  This can be seen in the judgment of Deputy High Court Judge Obi in Serra -v- Harvey [2024] EWHC 2250 (KB) where a wasted costs order was made against the claimant’s solicitors for the delay in preparing trial bundles which, when prepared, were “haphazard” and led to an adjournment.   The solicitors were ordered to pay the wasted costs on an indemnity basis.

 

“I do not accept the submission made by Mr Hamilton that with the benefit of hindsight and given the volume of material to be processed, considered and arranged, the process of agreeing the index and providing the bundles should have been commenced earlier than in fact it did. The reason I disagree with that submission is because early preparation of the trial bundles did not require hindsight.”

THE CASE

The judge was considering the issue of wasted costs following the adjournment of a trial. The trial had been adjourned due to the claimant’s solicitors failure to prepare a trial bundle.

 

“The trial was scheduled to commence on Monday, 24 June 2024 with a four-day time estimate. I adjourned the trial on Day 1 due to the late service of the trial bundle and concerns about the adequacy of that bundle. The Claimant’s solicitors had failed to prepare the trial bundle on time despite a court order having been made in June 2023. As a consequence, the trial bundle was prepared in haste. The late service of the trial bundle adversely affected the preparations of the parties and the Court and the ability to conclude the trial within the original trial window.”

 

THE CHRONOLOGY

On the 23rd June 2023 the court had ordered that a trial bundle be served no more than 10 and no less than 7 days before the trial. The last date for compliance was 14 June 2024. A subsequent order was made that that claimant serve an electronic and hard copy of the trial bundles by 21st June 2024, the claimant’s solicitors failed to comply the order.

THE DEFENDANT’S BUNDLES

The defendant’s solicitors stepped in to help.  They prepared bundles 1 and 2.

THE CLAIMANT’S (INADEQUATE) BUNDLES

The Claimant’s solicitors prepared bundles 3 and 4. There is a concern that bundles 3 and 4 have no internal index and bundle 3 has some undated pages and unpaginated photographs. I am also aware that there is an issue with regards to the failure to serve the video evidence. A revised trial bundle index was sent to the Defendants on Saturday, 22 June 2024 at 5.26 pm; this being the first time that a comprehensive index referring to bundles 1 to 7 was provided. Bundles 5, 6 and 7 were sent to counsel for the Defendants on Sunday, 23 June 2024 at 12.18 pm, just 24 hours before the trial was due to commence. At 9.27 pm on 23 June 2024 the Claimant’s solicitors confirmed that there were approximately 30 items in the bundles that had not previously been disclosed.

NOT A COMPREHENSIVE LIST

10.  This is not a comprehensive exposition of the issues relating to the trial bundles and the delay this caused, but for present purposes, it gives a flavour of what happened and importantly what did not happen.

 

THE WASTED COSTS ORDER (1) THE CLAIMANT KNEW THIS WAS COMING AND SHOULD HAVE PREPARED

 

15.  I start first with the issue of conduct. I do not accept the submission made by Mr Hamilton that with the benefit of hindsight and given the volume of material to be processed, considered and arranged, the process of agreeing the index and providing the bundles should have been commenced earlier than in fact it did. The reason I disagree with that submission is because early preparation of the trial bundles did not require hindsight. As I stated when adjourning the trial on Day 1, preparing trial bundles is not difficult but it does require organisation and planning. That did not happen in this case. It is not uncommon for solicitors to be faced with difficulties such as problems with the printers or the formatting of documents. Furthermore, it is always possible for unforeseen events to occur. That is precisely why the preparation of trial bundles needs to be commenced in good time, to ensure that if there are any problems they can be resolved in a timely manner and without adversely affecting the trial. That is especially important when there are known difficulties.

THE WASTED COSTS ORDER 2: “THE TRIAL BUNDLES WERE HAPHAZARD”

 

8.  It is perhaps unsurprising that under the time pressure of finalising a trial bundle, which is already late, the Defendants have identified a number of errors. Mr Blakeney took me through some of the indexes to illustrate the point. For example, 2500 pages of documents were sent the day before the trial and revised bundles were sent on the morning of the trial. Mr Blakeney submitted that the trial bundles were haphazard. I accept that characterisation.

 

THE WASTED COSTS ORDER 3: PREPARATION SHOULD HAVE BEEN MADE IN GOOD TIME

 

“[when the conducting solicitor] was away on holiday, appropriate cover should have been organised. In the absence of agreed facts, and a clear indication that the entire case was disputed, preparation should have been made to prove each element of the Claimant’s case. If additional documents were required, these should have been collated in good time. Given the start of the trial was uncertain, it should have been assumed that it would begin on the first day of the trial window. ”

 

THE WASTED COSTS ORDER 4: PREPARATION OF THE BUNDLES FELL BELOW ANY REASONABLE STANDARD

“In these circumstances, I have no hesitation in concluding that the conduct of MFG is improper in the sense that it would be regarded as improper according to the consensus of professionals including judicial opinion. It would not be difficult to imagine conduct of a legal representative that fell even further short of the high standards expected. However, that does not mean that the failures in this case were not sufficiently serious to be properly described as improper.”

NO IMPROPER MOTIVE BUT NO EXCUSE FOR BREACHING COURT ORDERS

22.  I do not find that there was any improper motive, and I do not find that Mr Duke-Cohan, or anyone within his firm, was acting in bad faith but the conduct was unreasonable.
23.  Specific reasons have been provided for breach of the Court orders, but they do not amount to a reasonable explanation for the conduct itself. MFG breached two Court orders and as a consequence the trial dates have been lost. The failure to prepare the trial bundles on time represents a failure to act with the competence reasonably expected of ordinary members of the profession.Given the context in which the evidence must be determined, I am satisfied that MFG was negligent in failing to take appropriate and timely steps to prepare the trial bundle.

THE EXERCISE OF A DISCRETION: THERE IS A PUBLIC INTEREST IN THE WASTED COSTS BEING VISITED ON THE SOLICITORS

“It seems to me that there is a public interest in costs, which have been wasted as a result of a solicitor’s conduct in proceedings being visited on the solicitors in the form of a Wasted Costs order, for two main reasons. First, it sends a clear message that the Court expects orders to be complied with and it reaffirms the duty to monitor compliance and inform the Court about any failure to comply with a case management direction. Secondly, and importantly it relieves the cost burden on the solicitors’ client who would, if no costs order were made, potentially need to make a negligence claim against their solicitors with all the additional costs that would incur.
31.  I should add that I find that MFG must bear 100 per cent of the wasted costs. I have not been provided with any evidence to suggest that the Claimant bears the responsibility. It appears that she provided a large volume of material to MFG which they were aware of, and this should have been factored into any consideration as to how long it would take to prepare each of the trial bundles.”

THE RESULT: SOLICITORS ORDERED TO PAY COSTS IN FULL

 

37.  As all litigators know, there is always frenetic activity close to the date of trial and even more so in a case such as this when it was unknown whether the trial would actually be effective because of the issues with the trial bundles. I also accept that the invoice from Mr McHale was reasonable given that he set aside time to attend the trial which then had to be aborted at the last minute.
38.  Therefore, 100 per cent of the wasted costs of the defendants shall be paid by MFG. These costs are on the indemnity basis. The legal principles governing the award of costs on the indemnity basis are uncontroversial. Section 51 of the Senior Courts Act 1981 states that costs shall be in the discretion of the court. It is well established that the making of a costs order on the indemnity basis will be appropriate in circumstances where the conduct of the parties or other particular circumstances of the case take the situation out of the norm in a way that justifies an order for indemnity costs. In other words, something outside the ordinary and reasonable conduct of proceedings. This case clearly falls outside of the norm, for the reasons I have already articulated.
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