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A Bundle of Trouble

A very distinguished barrister, a QC, (now a judge) was once doing a very difficult case. There were various things which made his task so much more difficult. One was that he had no junior. Although the QC will be making all the speeches in court and asking questions in cross emanation, a good junior is worth his or her weight in gold to the QC. They can chase down particular points or references, and provide the backup support that allows the lead advocate to concentrate on the essentials. This QC was managing without a junior. He also had no settled team of solicitors, or no settled solicitor. It can help also if you have a solicitor who is both present and has done a lot of work on the case. Sometimes however in a long trial the solicitor who knows the case is absent and you can be landed with someone who doesn't really know the case at all. Therefore this particular QC in this particular case was very much acting on his own.

He got to the point in the case where the other side put their expert accountant in the witness box. He decided that the right way to approach this particular witness was to show that the expert had jumped to conclusions which he could not justify on the available material. "How do you support this conclusion?", the QC asked by reference to the report. The QC thought it was a pretty good question, because he thought that it would expose that there were no documents which existed which could justify the conclusion, and that that would not only undermine that particular conclusion but also affect the view generally which the court took of the evidence of the expert. What the QC was not expecting was the answer actually given by the expert. "It's all the material in trial bundle 27, if you like I can take you through the particular documents and show how they all support the conclusion." The QC was taken aback. He asked for a short adjournment. The reason was fairly simple. His trial bundle ended at bundle 26. No one had told him that after the initial trial bundles had been prepared, that some additional bundles had been agreed. Not only was he not told, but he was not provided with them. He had therefore conducted his case in complete ignorance of the existence of material documents. He therefore ended up having to continue his cross-examination not only having (through no fault of his own) failed to properly prepare it, but with the difficulty of trying to avoid being distracted by realising that he had not got on top of the material. Of course, with a settled team it might have been that this particular problem would have been avoided. You will not be surprised to hear that he did not win the particular case.

That is a spectacular example, but the problem is more widespread than you would imagine. Missing bundles can often be a problem. This usually arises where someone puts additional documents in a "B" bundle. Obviously if you are told that the trial bundles run from say 1 to 37, you will notice if you do not have a bundle 35. However if additional bundles are put in and because the material is relevant to an existing bundle they bear a letter, you might not realise that you do not have a bundle 35B. Even so, with a proper team that should always be avoided.

What is usually more problematical are the numerous inserts which occur as a trial proceeds. There may be a document referred to in the document and so extra pages will be inserted into bundles. It is very easy for the document to end up being missed, or be put into the wrong bundle , meaning that you either refer to the wrong reference or cannot find the document when someone else refers to it.

Personally I have only ever had slight problems with the odd missing document, all of which have been readily dealt with. That however is with the exception of one spectacular example of bundles going wrong, which I will tell you about next week.

Michael J. Booth QC