Judge criticises parties for electronic bundle failure


Bundles: Parties must follow Chancery Guide

A judge has strongly criticised the unsatisfactory bundles prepared for a trial, stressing the “importance of discipline in the preparation of a readily navigable chronological trial bundle”.

His Honour Judge Cawson, sitting as a High Court judge, said some relevant documents were not put to witnesses as a result.

The need for good bundles was “all the more acute where a trial is being conducted remotely using electronic documents”, he added.

“I suspect that in most cases, one or more PDF files, properly bookmarked and with pagination corresponding to the PDF pagination, is likely to suffice without the use of a more sophisticated documentation presentation platform.”

The bundles prepared for DRSP Holdings Ltd & Anor v O’Connor & Anor [2021] EWHC 626 (Ch) failed to comply with the Chancery Guide, which required that trial bundles should generally be arranged in date order.

Instead, the judge was given a number of bundles comprising separate PDF files comprising the exhibits to various witness statements, copies of transcripts of various meetings, correspondence, and certain additional witness statements.

He was also provided with a memory stick containing the parties’ disclosure, including Excel spreadsheets with hypertext links to some but not all of the disclosed documents.

HHJ Cawson recounted: “It was explained that this latter course of action, and in particular the use of the Excel spreadsheets, had been taken given the vast number of documents disclosed in the present case.

“What was done may well have been done with the best will in the world, and this did at least provide a method of gaining access to the relevant documents.

“However, the necessity to access documents through the hypertext links in the Excel spreadsheets led to not inconsiderable difficulty during the course of the trial, in particular during the course of cross-examination, exacerbated by the fact that a download provided to the defendants did not contain the hypertext links to the claimants’ documents.

“Further, the lack of a chronological bundle has made my task of understanding how the documentation fits in with the factual narrative and the evidence very much more difficult and time consuming, and must also have caused considerable difficulty to counsel in preparing cross-examination, and marshalling their arguments.”

These problems showed the importance of a chronological bundle in a readily accessible format, HHJ Cawson said.

During the trial he ordered that a chronological PDF bundle containing the documents referred to during cross-examination and closing submissions be prepared – it turned out to be a “readily manageable and navigable” PDF file of 740 pages.

HHJ Cawson went on: “It has been of immeasurable assistance to me in writing this judgment, and represents the sort of bundle that ought, by cooperation between the parties, to have been produced prior to the commencement of the trial for the assistance of all involved.”

But he added: “However, a consideration of this chronological bundle has revealed to me a number of documents that may well have been put to the witnesses had the documents been more readily accessible.

“This is unsatisfactory given that although I do not consider that the case turns on them, I have felt compelled to refer to a number of these documents in this judgment, and serves further to emphasise the importance of complying with the relevant part of Chancery Guide.”

HHJ Cawson said he may consider a costs sanction “in due course”.




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