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A Bundle of Trouble

One of the things that can drive lawyers to absolute distraction are the bundles in an action.

The bundles are the lever arch files in which the documents for any case are kept. This is a way of ensuring (at least in theory) that the case can proceed smoothly and quickly because everybody can easily arrange to be looking at the same page. Thus if the bundles are numbered in alphabetical order, (whether or not with subsets within the alphabet) a reference to "D1 page 327" will mean that everybody can get to the right page simultaneously. Without the bundle system civil cases would simply be incapable of being tried properly. Everything would take too long, and one will be lost in a sea of paper as documents kept being handed around and everyone tried to locate their own copy.

Being a barrister I have been in the happy position of never having had to prepare the bundles for a case. Although views as to preparing bundles differ, I have never yet met a solicitor who found the task intellectually stimulating. In general it is one of those evil necessities that are just part of the job.

One of the problems is that deciding how and in what way to prepare the bundles can be a difficult task. It is one of those unfortunate things which it is difficult to do but easy to criticise. The parties' respective solicitors are supposed to cooperate about the bundles, but obviously in hard fought litigation that principle is more honoured in the breach than in reality. There are also a number of particular rules which are applicable. One issue is that in general there should only be one copy of a document at one point within the bundles. Where for example documents have been exhibited to more than one witness statement or affidavit, there is just supposed to be a page reference diverting you to where that is to be found in the bundle. Of course sometimes that ends up being monstrously inconvenient. Solicitors always have to try and second-guess exactly what is the best thing to do. Of course you cannot know what might be important documentation to include in the bundle unless you know about the case, so this cannot just be left to someone who has no real clue about the case.

One poisoned chalice that is sometimes given to trainee solicitors is to prepare the bundles in any particular case. In a substantial case that can be a task they could well have done without.

Where the barrister gets very much caught up in the issue of bundles is when the judge is unhappy. Although the barrister does not prepare the bundles, the barrister is the one standing there to whom the judge addresses his or her comments. If the bundles have not been prepared in accordance with the various practice directions, the judge can make orders which disallow costs. In addition if the judge is not happy about the way the bundles have been put together, he or she can express displeasure in the harshest of terms. Imagine yourself as a trainee solicitor who has worked on putting together the bundles, who attends court next to the client or client representative, and then hears the judge sounding off at length about how dreadful and useless the process of preparing the bundles was. What makes it worse is that this is often a complaint when the bundles have been prepared urgently at the last moment. Thus it can often be when you have had to work through the night to finish a job that you will find yourself castigated from on high for any failings.

This of course puts the barrister in a difficulty. The barrister wants to placate the angry judge. At the same time the barrister does not want to effectively make it appear that the solicitor is being thrown to the wolves and abandoned. Treading a fine line between these two opposing principles is fairly tricky. If you do not play it right you can end up simultaneously irritating the judge and making the solicitor feel let down.

That however is a relatively minor problem compared to some of the problems the bundles in the case can cause. We shall return to this next week.

Michael J. Booth QC