BUNDLES EXHIBITS AND PAGINATION: AVOIDING COSTLY MISTAKES

I have given up being surprised that the post on trial bundles and Sedley’s Law is the most read post on this blog.  Day after day, month after month, it draws a regular readership. However, in practical terms, it is easy to see why this is. The importance of bundles, exhibits and accurate pagination can be seen in the judge of Mr Justice Edwards-Stuart in PM Project Services Limited -v- Dairy Crest Limited [2015] EWHC 1235 (TCC).  The case illustrates that a knowledge of the rules as to bundles, exhibits and pagination is important. Failure to comply could be costly.   The judge also had some important observations about the need for accurate time estimates.

THE CASE

The claimant was applying for summary judgment.  There was a lengthy witness statement in support with 750 pages of documents.

THE BUNDLE AND THE EXHIBIT

The judge commented on the difficulties he had with pagination of the exhibits.

“The second and third limbs of the application were supported by the witness statement of a Mr Dean, to which were exhibited documents running to over 750 pages. Unfortunately, the page references in Mr Dean’s witness statement are different from those in the bundle prepared for the hearing and the original page numbers have not been retained. Thus, when Mr Dean refers to a TS01 Report dated 8 December 2015 at paragraph 22 of his witness statement, which is said to be found at pages 174-186 of his Exhibit MD6, this is of little help because that exhibit starts at page 400. Although it is not obvious, a careful perusal of the exhibits reveals that there is an index to each exhibit inserted behind the cover sheet. If one works one’s way through the index for Exhibit MD6, the TS01 Report is shown as being at page 24. It is, in fact, at page 428 of the bundle. It is not at page 424, as one might expect, because a spreadsheet running to 4 numbered pages has been inserted immediately behind the index.
3. In the application notice it was stated that three hours would be needed for the hearing, although it was in fact listed for half a day. It was suggested that three hours would be required for pre-reading, although in my view this estimate would have been on the low side even if the application bundles had been properly paginated. As it was, any sensible pre-reading was derailed by the manner of the pagination of the exhibits to Mr Dean’s witness statement. After about two hours of reading the papers I concluded that the handicap presented by the pagination would prevent the necessary amount of reading taking place before the hearing. I therefore said at the outset of the hearing that I was not prepared to hear the second and third limbs of the application, but that I would hear the first (which did not rely on the evidence of Mr Dean). That is what happened: but, even so, the hearing of that claim alone took 1 hour and 45 minutes. If I had decided to embark on a hearing of all three limbs of the application, there is no prospect whatever that it could have been finished in a morning.
4. I have directed that when this judgment has been handed down the bundles are to be returned to PM’s solicitors in order that the witness statement of Mr Dean can have the correct bundle references inserted. The costs of that exercise and any costs thrown away by the necessity to adjourn the second and third limbs of the application must be borne by PM.”

GUIDANCE IN THE CHANCERY GUIDE

There is useful guidance at paragraph 8 of Appendix 10 of the Chancery-Guide. This appears to be designed to ensure that the reader (that is the judge) can read the witness statement and the document referred to in an exhibit simultaneously.  It also gives a method whereby the page reference in a bundle is clearly marked on the witness statement (and this can be done by hand).

“Witness statements very often refer to documents. If there could be any doubt as to what document is being referred to, or if the document has not previously been made available on disclosure, it may be helpful for the document to be exhibited to the witness statement. If, to assist reference to the documents, the documents referred to are exhibited to the witness statement, they should nevertheless not be included in trial bundles in that form: see Appendix 6, paragraph 4. If (as is normally preferable) the documents referred to in the witness statement are not exhibited, care should be taken in identifying them, for example by reference to the lists of documents exchanged on disclosure. In preparation for trial, it will be necessary to insert cross‑references to the trial bundles so as to identify the documents: see Appendix 6, paragraph 24″

THE GUIDANCE AT APPENDIX 6, PARAGRAPH 24

“Witness statements, affidavits and expert reports

  1. Where there are witness statements, affidavits and/or expert reports from two or more parties, each party’s witness statements etc. should, in large cases, be contained in separate bundles.
  2. The copies of the witness statements, affidavits and expert reports in the bundles should have written on them, next to the reference to any document, the reference to that document in the bundles. This can be done in manuscript.
  3. Documents referred to in, or exhibited to, witness statements, affidavits and expert reports should be put in a separate bundle and not placed behind the statement concerned, so that the reader can see both the text of the statement and the document referred to at the same time.
  4. Backsheets to affidavits and witness statements should be omitted.”

RELATED POSTS

Exhibits

Bundles

One comment

  1. Anton Smith · · Reply

    This issue can become particularly fraught by the time of an appeal. Initially there was a witness statement meticulously cross-referenced to a paginated exhibit. That exhibit or its component documents (which arguably should be arranged consecutively rather than within their exhibits) then ends up in a continuously paginated trial bundle to which the resulting judgment then refers. On appeal only documents relevant to the appeal should go in the appeal bundle (it must not be the whole trial bundle all over again) which is again consecutively paginated. So the same document has had at least 3 different page numbers by this point.

    Counsel’s skeleton argument will inevitably refer to the relvant page in the relevant hearing bundle which supports the point being made. But of the judge wants to read the witness statement as originally drafted with its accompanying exhibit then those documents are now scattered far and wide with multiple page numbers thereon.

    There are only so many places a page number can be put and the significance of each one of many is not automatically obvious. Repeated annotation in manuscript of the witness statement to track the latest whereabouts of the relevant intended document is messy – shouls superseded annotations be scratched out? Ir a sequence of colours as used to be thr case with amendments to pleadings?

    I have read strong judicial criticism of (and indeed costs arguments based upon) non-consecutive pagination in favour of numbered dividers, with each individual starement of case or document etc. having its own pagination that it had when drafted in Word. Others judges are fine with it, presumably on the basis that divider 5, page 21 is arguably quicker to find than just page 299. Surely quicker is better, given the previousness of court time.

    It is unfortunate if preparation of acceptable bundles is reduced to mind games about how the judge might want to read their contents, either as guided by counsel or left to their own devices.

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