Earlier this month, a judgment by Mr Justice Edwards-Stuart in the Technology and Construction Court attracted a lot of attention because of the learned judge’s comments about what he saw as the poor preparation of the trial bundles. In fact, he considered that the problems of the bundles were so acute that he adjourned two parts of a three-part application, and ordered that the costs of the adjournment as well as the costs of repaginating the defective bundle should be paid by the firm which had originally submitted it. In other words, it was a fairly expensive mistake.
The problem was the page numbering, or pagination, of the bundle. Those of you who are involved in the preparation of bundles will probably recognise the difficulty: it is the ‘Russian doll’ effect of putting already paginated documents into a bigger bundle, and the confusion that can arise.
The bundle contained a witness statement — made, as it happened, by a Mr Dean — which had a very large number of exhibits: the entire document, including the exhibits, ran to about 750 pages. This witness statement was essential to the second and third applications.
The witness statement had originally been prepared with its own page numbers, but then it had been engrossed into the trial bundle. At that point, the original page numbers had been removed and new bundle page numbers had been substituted.
The thinking behind this was probably to avoid the confusion that can arise when a document has two sets of page numbers, and was therefore sound as far as it went. So far, so good.
However, it did not go far enough, because Mr Dean’s witness statement continued to refer to the exhibits under their original page numbers, which had of course disappeared and been replaced by the bundle page numbers. This meant that the judge (and any other user of the bundle) had to hunt through the files for the exhibit number and try to work forwards from there. Even that did not work in this particular case, however, because in at least one instance, some extra documents had been added which had knocked the numbering sequence even further out.
The judge was faced with the time-consuming exercise of hunting through the bundle each time a document was referred to in the witness statement and trying to find where the document appeared. Suffice to say that in his view, the reading time of three hours that had been allowed was insufficient in these circumstances. He adjourned the two applications which depended on Mr Dean’s statement and ordered that the solicitors should pay the resulting costs.
If your boss is often involved in preparing litigation bundles for court and has not seen this case, you should bring it to his or her attention. It shows that the courts are becoming far less tolerant of practical mistakes of this kind and that they are prepared to penalise sloppy bundle-compiling in costs. It is also worth suggesting that you, as his or her assistant, should get some further training and guidance on current best practice in putting bundles together.
One important thing to note is that these days, there is a strong preference against simply engrossing an entire witness statement, including exhibits, into one part of the bundle and then reproducing large parts of it elsewhere as part of the documents in the case. This used to be a very common practice, though the widespread court disapproval of the wasteful photocopying of documents has meant that it is now on the decrease.
Best practice now is to exhibit the witness statement in one folder along with other formal court documents, and then ensure that the references to the exhibits are changed to page numbers in the documents folder. It is now clear that trial judges prefer to have the witness statement in one file and the documents in another, so that the bundle user can have both files open at once and can read through the two documents simultaneously. This not only saves time for the judge, it saves a great deal of court time, because the witnesses are not obliged to turn backwards and forwards through the bundle between their statements and the exhibits while they are giving their evidence.
If your boss is putting together a trial bundle which includes a witness statement plus exhibits, and then all of the exhibits again as part of the main bundle (family lawyers are very prone to doing this), it is definitely worth bringing the new best practice to his or her attention; you may well save your boss from criticism in court.
For those who are interested in reading more about this topic, Guildhall Chambers in Bristol has produced an excellent guide to the preparation of court bundles, which can be found at: