While a good trial bundle may not win a case, a bad one may damage it. One of the challenges for practitioners, particularly in document-heavy cases, is what should go in the bundle and what can be left out. In the recent case of White Winston Select Asset Funds LLC and another v Mahon and another, the High Court advocated that a “building up from nothing” approach should prevail over a “thinning down from everything” approach ( EWHC 1381 (Ch)).
The importance of the trial bundle
The purpose of the trial bundle is to place before the court all relevant material and to assist both the lawyers and the court with ensuring a process that is as smooth and expeditious as possible. Preparing the trial bundle demands close attention to detail, as well as patience when co-ordinating between the parties and managing updates. It is often perceived as a laborious, largely administrative task and delegated to trainees and junior lawyers. However, a trial bundle containing the wrong ingredients may be a recipe for disaster. The judge’s reading time is limited and they will not have time to deal with a poorly assembled, unstructured and unfocused bundle. A party does not get a second chance to make a first impression.
In White Winston, the court noted that many pages were wholly redacted or blank and others had redactions rendering them unintelligible or useless as evidence. The case illustrates how a poorly-assembled bundle can lead to costs sanctions and, perhaps more damagingly, may prejudice the court’s view of the case (see "Getting it wrong").
This is far from an isolated issue. Case law is strewn with cautionary tales. In Griffiths v The Secretary of State for Health, the High Court observed that about 90% of the documents in the bundle were entirely redundant ( EWHC 1264 (QB)). The court acknowledged that it should not be too ready to criticise solicitors who may err on the side of generosity when deciding which documents to include, but this does not excuse wholesale profligacy. The parties' duty to further the overriding objective in Civil Procedure Rule (CPR) 1.3 will not be fulfilled by what the court termed “documentary carpet bombing”. Here, a meticulously prepared claim was undermined by a severely over-inclusive approach to the trial bundle.
In Deluxe Art & Theme Limited v Beck Interiors Ltd, exasperated at the volume of material that was included in the bundle but not referred to, the High Court cautioned that the time was fast approaching when the court would simply refuse to hear cases where there was “promiscuous and unnecessary bundling” ( EWHC 238 (TCC)).
Approaching the task
CPR 39 and Practice Direction (PD) 32 state what the trial bundle should include and how it should be assembled. These rules bear close attention as, among other things, they prescribe the use of dividers and colouring or lettering to distinguish bundles. In addition, PD 32 has been amended to specify that, unless the court otherwise directs, documents in the trial bundle should be copied double-sided.
These rules should be the practitioner’s touchstone throughout the process, as should any particular requirements in the court guides. For example, paragraph 27.8 of PD 32 states that the bundle should be paginated continuously throughout but paragraph 21.43 of the Chancery Guide says that it is permissible to number documents separately within tabs. The Admiralty and Commercial Courts guide sets out a timetable for agreeing the content and organisation of the bundle (paragraph J4.5). Both of these guides contain detailed guidance on preparing bundles and are a valuable reference point irrespective of where proceedings are taking place.
Solicitors should also consult with counsel, who will require the bundle to prepare for trial and when on their feet in court, and are likely to have strong views on the structure and contents of the bundle. They will have learned their preferences from the use of both poorly and well-prepared bundles and will have a number of practical tips and requests to take into account.
Thinning down or building up?
From the perspective of the courts and the rules, practitioners should adhere to the “building up” process. The Admiralty and Commercial Courts guide emphasises that the bundle should include only necessary documents (paragraph J4.4). The Chancery Guide echoes this sentiment, stating that a special costs order may be made against a party if it considers that costs have been wasted by copying unnecessary documents (paragraph 21.40). In Poshteh v Royal Borough of Kensington and Chelsea, the Supreme Court urged those involved in the preparation of bundles to keep the contents within reasonable bounds and to exercise restraint ( UKSC 36).
In reality, the process may be a combination of both thinning down and building up. Whichever approach a practitioner adopts, the key is to undertake the task with a critical eye: if they err too far on the side of caution they may end up on the wrong side of the judge. As the High Court said in Taberna Europe v Selskabet, documents should not be included on a “just-in-case” basis ( EWHC 871 (Comm)). However, this may be far easier said than done. Many practitioners may continue to feel that it is better to include more rather than less in the bundle and then identify the key documents in skeleton arguments. The situation inevitably becomes more complicated if an intransigent opponent insists on including documents that the other party considers irrelevant, in which case there may be little option but to include the material.
Either way, it is important not to lose sight of the fact that the bundle must be user-friendly and should be organised and presented accordingly. For example, practitioners should:
- Make the index simple and concise so that it will be easier to identify the relevant entry.
- Consider a core bundle containing the most important documents. This will almost certainly be desirable in document-heavy disputes and assists in ensuring that the important documents are visible among less relevant material. It will also greatly assist the judge in directing their pre-reading and keeping the key documents readily accessible.
- Paginate pages at the bottom right to avoid the need to have to turn full pages and ensure that page numbers are in sufficiently large a font and distinguishable from any existing page numbering. When copying and paginating, the transparent setting should be used to avoid erasing existing page numbering, if that would be useful to retain.
- Place witness statements in a separate bundle and exclude exhibits. The document references can be cross-referenced in manuscript to the relevant parts of the chronological bundle. This will avoid duplication and assist in cross-examination, where the witness can review the relevant statement and the cross-referenced documents at the same time without having to lose their place in the witness statement.
- Consider whether disclosure lists, directions questionnaires, application notices and response packs are necessary and whether every court order needs to be included. Redundant documents, such as particulars of claim that have since been amended, should not be included. In addition, not every authority in the parties’ printed cases may need to be included in the volume of authorities. The Supreme Court in Poshteh noted that parties should only include those cases that are likely to be referred to during the oral argument or which are less accessible because they have not been reported in the law reports.
- Ensure that all anti-virus and confidentiality warning are removed from emails.
- Put labels on the front and spine of each file, and on the top left of the inside of each file, so that these may be seen when the file is open. Large, clearly visible lettering should be used.
- Ensure that, when including landscape documents, the holes are punched at the top of the landscape page to ensure that when the file is turned to orientate the document correctly, the excess part of the file is turned away rather than towards the reader.
- Use strong files that will survive being handled roughly. Two rings rather than four means half the risk of trouble rather than double the security. It is also useful to ensure that the appropriate hole punch is kept in court for any last-minute inserts: judges do not like loose papers on their desk. Spare, empty files may also be useful.
- Ensure that the files are not overloaded. The Chancery Guide states that no bundle should contain more than 300 pages (paragraph 21.49).
Electronic trial bundles
It is hard to imagine, given the increasing digitisation of the courts, that electronic trial bundles will not at some point become the norm; indeed, the Supreme Court rules now specifically provide for electronic bundles and provide a technical guide on how these may be uploaded (see Know how article "Introduction to electronic trial bundles: bundle of joy?", www.practicallaw.com/w-011-7026). They perhaps also present the greatest temptation to abandon the discipline advocated above. After all, electronic trial bundles have the capacity to hold a significant volume of data in readily accessible and easily navigable form, and allow new documents to be added without having to update several hard copies in different locations.
However, this temptation must be resisted. While less physically apparent than with a hard copy bundle, it is unlikely that a bloated electronic bundle would come under any less scrutiny by judges working electronically, given the pre-reading requirement placed on the court; a task made all the more onerous and time-consuming by an over-inclusive approach. There will also naturally be cost implications in unnecessarily inflating the volume of documents to be managed by the service provider. In addition, there is every chance that counsel, and possibly also the court, might require at least some of the trial bundle in hard copy.
Getting it wrong
In White Winston Select Asset Funds LLC and another v Mahon and another, the High Court was presented with a trial bundle comprising 35 lever arch files, the bulk of which was the chronological bundle, containing more than 8,000 pages ( EWHC 1381 (Ch)). Of this, approximately 200 to 250 pages from the chronological bundle were referred to at trial and 200 pages from the other files. While not suggesting that the trial bundle should have been limited to 450 pages, the court was at a loss to understand the thinking behind it. This contributed to the court’s view that the scale of the litigation was completely out of proportion to the sums at stake. The court said that its impact would be felt not just in costs but also in the judgment on the trial.
This article first appeared in the August 2019 issue of PLC Magazine and is reproduced with the kind permission of the publishers.