The provision and content of a bundle can make or break a trial. That might sound overly dramatic for something which on its face is a purely administrative task but a well-constructed and tactically considered bundle can make all the difference. A perfect bundle allows the advocate to seamlessly direct a Judge or witness to the relevant evidence. It allows documents to be compared where needed and ensures that all evidence can be read and understood by those involved in the trial or hearing.

In open Court, with the Judge’s indulgence, missing documents can be handed up, if available to Counsel.  With remote hearings that is not possible. It must also be remembered that Judges working from home or an alternative court venue may not have access to the Court file.

A failure to file a bundle could result in a case being adjourned and the defaulting party facing a costs order. Solicitors may also find themselves at the wrong end of a show cause order when a trial collapses due to a missing or defective bundle. Similarly, a defective bundle with missing or unreadable documents could result in arguments being disallowed or rejected.

The importance of a well-constructed bundle cannot, therefore, be underestimated for both the smooth running of justice and the overall prospects of success of a claim presented.

There has been much discussion about technological advances allowing the linking of documents or navigation at the touch of a button. In reality, however, if the basics of bundle preparation are not achieved technology is unlikely to insulate parties from the cost implications.

It must also be stressed that the need for a properly constructed bundle is not just a concern for complicated or multi track trials. In fact the need for a skilfully constructed bundle is amplified by the rough and ready nature of the Fast and Small Claims Track.

The art of preparing the perfect bundle falls under three main headings Content, Quality and Construction.

Content

CPR 39.5 governs the filing of trial bundles but provides no rules or guidance on what should be included and in what format. This lack of guidance was changed in April 2019 with the addition of CPR 32 PD 27 which significantly expanded the requirements for agreed bundles.

CPR 32 PD 27.5 confirms that:

‘Unless the court orders otherwise, the trial bundle should include a copy of—

(a) the claim form and all statements of case;

(b) a case summary and/or chronology where appropriate;

(c) requests for further information and responses to the requests;

(d) all witness statements to be relied on as evidence;

(e) any witness summaries;

(f) any notices of intention to rely on hearsay evidence under rule 32.2;

(g) any notices of intention to rely on evidence (such as a plan, photograph etc.) under rule 33.6 which is not—

(i) contained in a witness statement, affidavit or experts’ report;

(ii) being given orally at trial; and

(iii) hearsay evidence under rule 33.2;c

(h) any medical reports and responses to them;

(i) any experts’ reports and responses to them;

(j) any order giving directions as to the conduct of the trial; and

(k) any other necessary documents.’

Given the catch all ‘other necessary documents’ it does require parties to take some time to consider what documents are required by the Court to consider the case they are being asked to decide.

It is also important to be aware that documents included within an agreed bundle are admissible unless the Court orders otherwise or a written notice of objection to the admissibility is filed pursuant to CPR 32 PD 27.2. Care should, therefore, be taken not to include a document within the bundle over which a dispute exists in respect to its admissibility. Admissibility of course does not dictate the weight the Court will apply to the evidence or the correct interpretation to apply to its contents. If there is, however, a genuine dispute over a documents admissibility it is not sufficient simply to refuse to include it within the bundle or to leave it to Counsel to argue. A Notice of Objection with a  summary of the points on which the parties are unable to agree should be included for the Court’s consideration.

Similarly the authenticity of a document served under Part 31 is also admitted pursuant to CPR 32.19 unless a notice has been served requiring a party to prove a document at trial. As such arguments that a signature is not genuine or a document has been created after the fact should not be considered by the Court without a Notice to Prove.

In some respect, therefore, the formulation of a trial bundle and the tactical considerations surrounding what documents to include should start well before trial and be an integral part of the litigation strategy.

Quality

The rules confirm that the bundle should be paginated and indexed (CPR 32 PD 27.8) and care should be taken to ensure that page numbers are visible, clear and consistent. It is not unusual for bundles to be out of sync causing different page numbers on the same documents. Such errors are not insurmountable when in person but could completely derail a remote hearing. Difficulty navigating through a bundle or confusion over which document is being considered also elongates cross examination and could weaken the strength of credibility arguments when the bundle itself contributes to a witnesses confusion.

The rules also require numbered dividers to be used where the bundle is over 100 pages in length. A degree of initiative is required for electronic bundles but dividing bundles by sections should still be possible.

Whether the hearing is remote or in person it should be remembered that both counsel and the judiciary will likely be working from an electronic bundle. It is, therefore, important to consider the practicalities of the numbering system used. The PDF and the paper bundle should be easy to navigate and paginated in such a way that they function consistently in both formats. For example alphanumeric systems rarely translate well from paper to PDF.

CPR 32 PD 27.11 stipulates that where a document is illegible that a typed copy should also be included. This is, however, a last resort and obviously relates to documents which, in their available state, are no longer legible.

The size of exhibits and documents should also be considered against the reality of an A4 bundle. The purpose of including a document should also be considered and care should be taken to ensure that the desired outcome can be achieved. For example, tiny thumb nail photographs, such as those often attached to engineering evidence, will prove of little use in proving vehicle damage. Similarly, google maps which are so faint that junctions and road names can not be decerned will not assist the Court in understanding a roads layout or the mechanics of an accident. Judges will, likely, place zero weight on anything too small or faint to review or analyse.

Each page in the bundle should, therefore, be quality checked to ensure legibility and photographs, where possible, should be in colour.

Importantly there is a duty to supply identical bundles to all the parties and for use by the witnesses pursuant to CPR 32 PD 27.13. It is, unfortunately, not unusual for the Judge, parties and Counsel to have slightly different copies of the bundle.

Construction

There is no guidance which specifies the construction and organisation of a bundle but an easy to navigate bundle is essential. It is advisable to follow the stages of litigation and to ensure that each party’s contributions are clearly identifiable. As such, for example, Claimant’s and Defendant’s disclosure should be separated but in proximity to each other.

When organising each section, it is worth remembering that a Judge has limited reading time and is likely to cherry pick which documents they read in preparation for the case. Whilst Counsel will highlight important documents as the hearing progresses, initial views will almost certainly be formulated during this reading time. As such organising the bundle so that the most important documents are prominent and obvious can assist in directing the Judge to where his attention is required. This avoids erroneous initial opinions being formulated because a key document is hidden in the depths of a voluminous bundle.

Where documents are contemporaneous in nature, e.g. correspondence or supplementary evidence they should be organised chronologically in the order of creation.

Contrary to popular belief a trial bundle can and should be printed double sided.

Filing and serving the trial bundle is not the end of the party’s obligations to ensure that the Court has everything it needs to proceed. CPR 32 PD 27.6 requires originals of documents within the bundle to be available at trial. In practice, however, original documents may not be available to the litigants or will be outside their control. Similarly, it may be disproportionate to collate original documents related to non-contentious areas. There are, however, some instances where original documents will be essential to the deliberations of the Court. Where, for example, a Notice to Prove has been filed, a party’s identity has been questioned or high clarity in the evidence will assist the Court’s deliberations, originals will be needed. Failing to provide originals of documents which the Court considers are necessary may result in an argument being rejected or a reduction in the weight applied to a document essential for a party’s prospects.

As is often the case in litigation a failure to master the basics can have a catastrophic effect on the success of the proceedings. The preparation and production of the trial bundle is non delegable and remains the responsibility of the legal representative. Whether the task is completed by administrative staff or legally qualified subordinates the Court expects usable and compliant bundles. It is a sad truth that the Court is often disappointed in the bundles received and are rarely shy in expressing their dissatisfaction. For Counsel it results in trial starting on the back foot, for the lay client it leaves a perception that the outcome of their case has been adversely effected by a failure to adequately prepare and for the solicitor it exposes them to an increased risk of complaints and adverse cost orders.