Bundles of Fun - Tackling Court Bundles

Caroline Greenwell and Simon Heatley consider recent case law on tackling court bundles

In the recent case of White Winston Select Asset Funds LLC & Anor v Mahon & Anor [2019], the court was singularly unimpressed at the claimants' approach to the trial bundle, going so far as to say that its impact would be felt not just in costs but also in the judgment on the trial. Meanwhile, in Parr v Keystone Healthcare Ltd & Ors [2019], a failure to follow the practice direction on the citation of authorities drew disapproval from the Court of Appeal, with Lord Justice Lewinson saying that: "Parties can expect that the cost of preparing a non-compliant bundle of authorities is at risk of being disallowed."

These are but two recent examples illustrating that missteps in the approach to preparing court bundles risk not merely annoying the court but also inviting sanction. This article examines the key points for practitioners when facing the task of assembling a bundle for the court.

White Winston

In White Winston, a trial bundle comprising 35 lever arch files was presented to the court. This included a 28-file chronological bundle containing over 8,000 pages. At trial, a total of just 450 pages were referred to from the entire trial bundle, leaving the court at a loss as to the rationale behind it. This was compounded by the fact that "not a few" pages were wholly redacted and entirely black or blank, others had redactions rendering them unintelligible or useless as evidence, and photographs had been included which were irrelevant to the proceedings.

In attempting to explain the claimants' methods, their counsel emphasised that an extensive de-duplication exercise had been undertaken but, if anything, this underlined for the court the flawed approach that had been taken to the task:

"Inevitably that exercise was not infallible and doubtless it was costly. However, the real point is that it suggests a thinning down from everything approach whereas what was needed was a building up from nothing approach."

The court summed up by saying that this (along with other failings by the claimants in their conduct of the claim) would be relevant to costs but it was also relevant to a judgment on the trial, highlighting the stark nature of the consequences for the claimants.

Other cautionary tales

The claimants in White Winston are far from alone in finding themselves on the wrong side of the court through their approach to preparing court bundles. To cite but a few examples:

• In Hudson Contract Services v The Secretary of State for Business, Innovation and Skills [2016], the core bundle ran to four thick lever arch files, containing, so the court said, "an extraordinary amount of unnecessary materials, which were not referred to and were copied in single-sided A4 sheets making portability impracticable." This in turn delayed the court's written judgment.
  
  
• In Deluxe Art & Theme Limited v Beck Interiors Ltd [2016], the court witnessed what it regarded as a simple enforcement dispute become the subject of no less than six full lever arch files, four of which were never referred to. Mr Justice Coulson concluded: "The time is fast approaching when, unless the parties and their solicitors cooperate properly and comply with the TCC Guide, the court will simply refuse to hear cases with such promiscuous and unnecessary bundling."
  
  
• In Taberna Europe v Selskabet [2015], there was a large number of bundles containing hard copies of documents, many of which were never referred to during the trial. Mr Justice Eder noted that this had "sadly become a matter of standard practice" but was unacceptable in large-scale modern litigation: "in my view, there is no reason in this modern electronic age why documents which might be described – at best – as "peripheral" and which are unlikely to be referred to need to be reproduced in hard copy on a "just-in-case" basis." The court was further hampered by the fact there was no satisfactory core bundle, with what had been provided being "something of a jumble", often not in chronological order and with unsatisfactory pagination. The judge said that he would consider whether any special order as to costs should be made.
  
  
• Before dealing with the substantive issues in Griffiths v The Secretary of State for Health [2015], the court felt compelled to comment on the volume of documentation that had been "offloaded" onto the court. The approach to the trial bundle, in the court's view, had been "egregiously over-inclusive" with about 12 of the 17 files deposited with court remaining unopened throughout the trial and reference to the contents of three others confined to just a few pages. About 90% of the documentation was entirely redundant and the court noted that the parties' duty under CPR 1.3 to help the court further the overriding objective was not fulfilled by "documentary carpet bombing". Breach of the practice direction (now PD32) could invite adverse costs consequences.
  
  
• Nor is the issue limited to the lower courts. In Parr, cited above, the Court of Appeal observed that the specific directions contained in Practice Direction 52C regarding the preparation of a bundle of authorities had been almost wholly ignored. The practice direction specifies, among other matters, that the most authoritative report of each authority must be used in accordance with the mandatory requirements of the Practice Direction on Citation of Authorities [2012] and must have the relevant passages marked by a vertical line in the margin. In Parr, the court was supplied with print outs and handed down transcripts of authorities that had been reported in the official law reports, unreported cases cited for propositions that could be found in reported ones and many authorities supplied without marking the relevant passages. As Jackson LJ observed in Iliffe and another v Feltham Construction Ltd and others [2015] (another case concerned with a problematic appeal bundle), the bundle "should be an aid to the court, not an obstacle course". As a result in the latter case, irrespective of the outcome of the appeal, the court decided that no party would be entitled to recover any costs referable to the preparation of the bundle.

Approaching the task

An article could be devoted simply to listing all the instances where the courts have taken the parties to task for failings in the preparation of bundles. But, more helpfully for practitioners, how to get it right?

The starting point must be the rules and the court guides. Paragraph 27 of Practice Direction 32 is the new home for requirements on bundles previously set out in a practice direction to CPR 39. The paragraph is entitled "Agreed Bundles for Hearings" but is expressed as a mixture of requirements for both hearing bundles generally and for trial bundles. That said, a number of practical points in the practice direction, while directed at trial bundles, would appear to be of general application, including that:

• Where the total number of pages is more than 100, numbered dividers should be placed at intervals between groups of documents (PD 32.27.8).
  
  
• If a document to be included in the bundle is illegible, a typed copy should be included in the bundle next to it, suitably cross-referenced (PD 32.27.11).

There is a new requirement that trial bundles should be copied double-sided (PD 32.27.15), as hoped for by the court in Hudson. On the face of it, this would appear to be limited to trial bundles, although given the heading of the paragraph, it would be prudent to check with the relevant court what its expectation is for any interim hearing (and to make sure that photocopies of bundles are produced using double-sided copying!).

The requirements in the practice direction also include that, where more than one trial bundle is supplied, they should be clearly distinguishable, for example, by different colours or letters. Commodities Research Unit International (Holdings) Limited -v King & Wood Mallesons LLP [2016] illustrates one pitfall to avoid in this regard, where the letter "I" was used for the labelling of some of the bundles, followed by numbers 1-9. This was not helpful to the court because witnesses on both sides overlooked bundle "I2" when asked to turn to it, thinking it was bundle "12".

One must not forget to consult the relevant court guide in addition to Practice Direction 32. In Deluxe Art, Mr Justice Coulson made reference to compliance with the TCC Guide. Section 6.5 of that guide sets out the requirements for application bundles and section 15.2 deals with trial bundles with the "ultimate objective" of creating trial bundles "which are user friendly and in which any page can be identified with clarity and brevity."

The Commercial Court, Chancery and Queen's Bench guides similarly set out specific requirements concerning court bundles, including on pagination and timings, and contain warnings as to costs for failings by the parties in the proper preparation of the bundles. The Chancery Guide (at paragraphs 21.34 through to 21.72) and the Commercial Court Guide (at Appendix 7) are particularly detailed and offer a number of practical points of general application. It is important therefore to be well acquainted with the relevant court guide in advance of embarking on a bundling exercise. The judges certainly are.

Electronic working

In Taberna, the court advocated a more judicious approach towards the production of hard copy documents, saying that it would normally be sufficient for those documents included on a "just-in-case" basis to be available, if necessary, in soft-copy format.

There now exist a number of providers who will facilitate the use of purely electronic bundles for trial.

The first point to remember is that the court's permission is required to use an electronic bundle for trial (PD 51O 13.2). Again, the court guides must also be consulted. For example, the Commercial Court deals with the annotation of electronic copies of statements of case or witness statements for the purpose of cross-referencing to other documents in the bundle. It specifies that, where this has the effect of altering the length or format of the document as compared with the signed original, then a solicitor responsible for the production of the bundles must sign a short statement to confirm they have checked and are satisfied that the wording of the document remains unaltered (Appendix 7 paragraph 4(iv)). Some providers offer hyperlinking functionality, which can greatly assist with the task of cross referencing to other documents in the bundle.

The second point is that the discipline that must be exercised in preparing the court bundle applies as much to electronic bundles as physical ones. While an electronic trial bundle has the ability to hold a large volume of data in easily accessible and navigable form and to allow additions of new documents with greater ease than what would be involved in updating multiple hard copy bundles, this does not mean that one is free to throw in every "just-in-case" document. An overly-inclusive approach will not only have processing and hosting cost implications, but it could very well impact the court where recourse is often still made by judges and counsel, and also witnesses, to hard copy bundles.

Finally, Invista Textiles (UK) Ltd & Anor v Botes & Ors [2019] highlights the importance of ensuring that a robust and reliable system is used. Delays and glitches in the system beset the cross-examination of witnesses, with the court concluding that unless such systems improved, it would require witnesses to be given a paper bundle in future.

Practical points

Whether one is working with electronic or hard copy bundles, it is necessary to ensure that the bundle is user friendly and easy to navigate. In drawing together common themes in the rules and other guidance and arising from case law, the following key points emerge:

• Guard against over-inclusivity. This issue reoccurs throughout the cases noted above. Take a critical view as to whether a document truly is necessary to be put before the court. This goes for statements of case, case management documents, court orders and authorities just as much as contemporaneous documents. Take the time to consider the value and relevance of each document to be added to a bundle, rather than adopt a default position of "include".
  
  
• Where there still remains a relatively large document population, or indeed in any case where it will likely assist the court, give serious thought to preparing a core bundle. Indeed PD32.27.9 states that, if there are numerous bundles, a core bundle should be prepared and that this should contain the core documents essential to the proceedings.
  
  
• Ensure that the bundle can be navigated easily. Judges and witnesses will likely be encountering the bundles for the first time in court and counsel will need to be able to direct them (and indeed find for themselves) the necessary documents without grinding the hearing or trial to a halt. Using sufficiently large, plentiful and clear labelling and pagination will be key to this, as will a succinct index.

For a different perspective, it is worth recalling the "Laws of Documents" formulated by Sedley J (as he then was) in response to his experience of trial bundles.

• 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:
  • At least 80 percent of the documents shall be irrelevant.
  • 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:
  • a steel pin sharp enough to injure the reader,
  • a staple too short to penetrate the full thickness of the bundle,
  • tape binding so stitched that the bundle cannot be fully opened, or,
  • a ring or arch-binder, so damaged that the two arcs do not meet.

These were published back in 1996 but hold as true today. Indeed, the court in Griffiths (cited above) made reference to the eighth law when deploring the state of the trial bundle before it. Given the prevalence of judicial comments on the subject, it seems unlikely this will be the last time. Taking heed of the above warnings and guidance may go some way to ensuring that your bundle isn't the next.

This article was first published by the Commercial Litigation Journal.

Caroline Greenwell is a Senior Associate and Simon Heatley a Knowledge Development Lawyer with Charles Russell Speechlys LLP

For more information please contact Caroline Greenwell at caroline.greenwell@crsblaw.com or +44 (0)20 7203 5150, or Simon Heatley at simon.heatley@crsblaw.com or +44 (0)20 7203 5088.

White Winston Select Asset Funds LLC & Anor v Mahon & Anor [2019] EWHC 1381 (Ch)

Parr v Keystone Healthcare Ltd & Ors [2019] EWCA Civ 1246

Hudson Contract Services v The Secretary of State for Business, Innovation and Skills [2016] EWHC 844 (Admin)

Deluxe Art & Theme Limited v Beck Interiors Ltd [2016] EWHC 238 (TCC)

Taberna Europe v Selskabet [2015] EWHC 871 (Comm)

Griffiths v The Secretary of State for Health [2015] EWHC 1264 (QB)

Practice Direction on Citation of Authorities [2012] 1 W.L.R. 780

Iliffe and another v Feltham Construction Ltd and others [2015] EWCA Civ 715

Commodities Research Unit International (Holdings) Limited -v King & Wood Mallesons LLP [2016] EWHC 727 (QB)

Invista Textiles (UK) Ltd & Anor v Botes & Ors [2019] EWHC 58 (Ch)