Trial bundles: why they are important and how to get them right

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A well-prepared trial bundle, available in good time, gives you an advantage in negotiations and the prospect of making a favourable impression on the court.

Let us consider paragraph 3 of the practice direction to Civil Procedure Rules (CPR) rule 39 for civil cases and the President’s Practice Direction of July 2006 (Family Proceedings: Court Bundles) (2006) 2 FLR 199 (the PPD) for family cases.

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The purposes of a trial bundle are fourfold:

To place before the court all the relevant written material to which reference will be made at the trial or other hearing.Invariably, insert at the beginning of the bundle (and not inconspicuously hidden away in the middle) a case summary, a schedule of the issues to be decided by the judge, a chronology, and a draft or summary of the order(s) sought. The case summary should be in the bundle when it is delivered to the court, so that the judge can quickly grasp the essential facts and the matters in issue. Do not wait until the day of the trial or hearing to produce these documents. Focus on the issues, and what you need to do to prove your case. Send drafts of these documents to your opponent and ask if they are agreed. You may discover that matters you thought were still in issue are now agreed, such as the value of an asset.

To give the advocate the best prospect of preparing effectively the presentation of the case.The advocate will wish to see quickly what documents are to be relied upon and, if necessary, draft a skeleton argument. This important preparatory work often has to be done in a very short time. If you are not to be the advocate, try to think what information you would want available if you had to present the case the next day.

If there is material that needs to be seen by the advocate but not by the court (such as without prejudice offers), this should be included in a separate bundle for the eyes of the advocate only.

To assist the judge with pre-trial reading.You and the parties are entitled to expect the judge to be familiar with the case and indeed the judge will want to be. But reading time is limited, and the judge will not have time to put a poorly prepared bundle in order. So deliver the bundle to the court in good time. Ensure that the date of the trial and the case number are marked clearly on your covering letter and on the spine or front outside cover of the lever-arch file(s) comprising the bundle. If the documentation is particularly voluminous, consider creating a separate core bundle containing the most important documents, or at least a reading list directing the judge to those documents it is vital to read before the case starts.

Delivering several lever-arch files containing hundreds of pages late in the afternoon before the trial is not a recipe for judicial approval.

The importance of the case summary, chronology and schedule of issues cannot be overstated. The greatest compliment you can receive is for the judge to quote in his judgment from one or more of these documents. The bundle should read like a book so that the story unfolds, as it will in court.

In ancillary relief cases, it is obligatory to include in the bundle a draft or summary of the order sought (see paragraph 4.2 of the PD). It will often be useful to include this in other types of case so that the advocate can refer to it when making submissions to the judge.

To enable the hearing to proceed smoothly and expeditiously.Make sure there are copies of the bundle available for witnesses and your opponent (which should have been delivered well in advance). Witness statements will invariably stand as their evidence in chief, and witnesses will be asked to confirm the truth of their statements in the bundle.

Consider these points:

(a) A good bundle cannot win a bad case, but a bad bundle can damage a good case.(b) Include only documents to be referred to at the hearing. Do not clutter the bundle with unnecessary documents. If necessary, check with your opponent.(c) Ensure that lever-arch files are still in good working order. The retaining prongs must close tightly together. The judge will be irritated by finding it impossible to turn to pages to which reference is made. Such bundles also make it very confusing and difficult for witnesses.(d) The pagination must be correct, clearly legible, and the same in each copy of the bundle.(e) If more than one lever-arch file is required, limit each file to 350 pages.(f) At the beginning of the first file, include a comprehensive and comprehensible index covering all the files. If there is more than one file, it is useful to have a copy of the index on each file. (g) Use page dividers to separate each section of the bundle, such as pleadings, witness statements, experts’ reports and so on. This will ensure that the bundle will be easier to navigate, and if documents have to be added and numbered later, this can be done without disturbing the overall numbering sequence.(h) Bundles are required for all civil trials and for family cases listed for more than half a day. Often bundles will be useful for shorter and preliminary hearings and should be prepared even if not ordered. Case management conferences are a classic example. The judge will be helped by a carefully prepared bundle containing the documents required for that hearing, including a draft of the orders sought.(i) Remember the special requirements for telephone hearings, which are set out in CPR 23PD 6.11.(j) Try to agree the bundle with the other side. The inclusion of a document is not an acceptance of its contents, merely an acknowledgement that it is a document to which reference will be made. Documents which are inadmissible should not be included in the bundle even if there is to be argument before the judge on those documents. Copies should be available for the court if they are ruled admissible.
The ever-increasing pressure on listing, and judicial and court time makes it imperative that cases are properly prepared. The trial bundle should be regarded as being as much part of the presentation of the case as what is said in court. Prepare it sloppily and your case may suffer: so may you, with an unpleasant costs order.

District Judge Paul Waterworth sits at Exeter and Barnstaple County Courts

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