oct ewj 24 online - Flipbook - Page 25
Given the catch all ‘other necessary documents’ it does
require parties to take some time to consider what
documents are required by the Court to consider the
case they are being asked to decide.
CPR 32 PD 27.11 stipulates that where a document is
illegible that a typed copy should also be included.
This is, however, a last resort and obviously relates to
documents which, in their available state, are no
longer legible.
It is also important to be aware that documents
included within an agreed bundle are admissible unless the Court orders otherwise or a written notice of
objection to the admissibility is filed pursuant to CPR
32 PD 27.2. Care should, therefore, be taken not to
include a document within the bundle over which a
dispute exists in respect to its admissibility. Admissibility of course does not dictate the weight the Court
will apply to the evidence or the correct interpretation
to apply to its contents. If there is, however, a genuine
dispute over a documents admissibility it is not sufficient simply to refuse to include it within the bundle or
to leave it to Counsel to argue. A Notice of Objection
with a summary of the points on which the parties are
unable to agree should be included for the Court’s
consideration.
The size of exhibits and documents should also be
considered against the reality of an A4 bundle. The
purpose of including a document should also be considered and care should be taken to ensure that the
desired outcome can be achieved. For example, tiny
thumb nail photographs, such as those often attached
to engineering evidence, will prove of little use in
proving vehicle damage. Similarly, google maps which
are so faint that junctions and road names can not be
decerned will not assist the Court in understanding a
roads layout or the mechanics of an accident. Judges
will, likely, place zero weight on anything too small or
faint to review or analyse.
Each page in the bundle should, therefore, be quality
checked to ensure legibility and photographs, where
possible, should be in colour.
Similarly the authenticity of a document served under
Part 31 is also admitted pursuant to CPR 32.19 unless
a notice has been served requiring a party to prove a
document at trial. As such arguments that a signature
is not genuine or a document has been created after
the fact should not be considered by the Court
without a Notice to Prove.
Importantly there is a duty to supply identical bundles to all the parties and for use by the witnesses pursuant to CPR 32 PD 27.13. It is, unfortunately, not
unusual for the Judge, parties and Counsel to have
slightly different copies of the bundle.
Construction
There is no guidance which specifies the construction
and organisation of a bundle but an easy to navigate
bundle is essential. It is advisable to follow the stages of
litigation and to ensure that each party’s contributions
are clearly identifiable. As such, for example,
Claimant’s and Defendant’s disclosure should be
separated but in proximity to each other.
In some respect, therefore, the formulation of a trial
bundle and the tactical considerations surrounding
what documents to include should start well before
trial and be an integral part of the litigation strategy.
Quality
The rules confirm that the bundle should be
paginated and indexed (CPR 32 PD 27.8) and care
should be taken to ensure that page numbers are visible, clear and consistent. It is not unusual for bundles
to be out of sync causing different page numbers on
the same documents. Such errors are not insurmountable when in person but could completely derail a remote hearing. Difficulty navigating through a
bundle or confusion over which document is being
considered also elongates cross examination and
could weaken the strength of credibility arguments
when the bundle itself contributes to a witnesses
confusion.
When organising each section, it is worth remembering that a Judge has limited reading time and is likely
to cherry pick which documents they read in preparation for the case. Whilst Counsel will highlight important documents as the hearing progresses, initial
views will almost certainly be formulated during this
reading time. As such organising the bundle so that
the most important documents are prominent and obvious can assist in directing the Judge to where his attention is required. This avoids erroneous initial
opinions being formulated because a key document is
hidden in the depths of a voluminous bundle.
The rules also require numbered dividers to be used
where the bundle is over 100 pages in length. A degree of initiative is required for electronic bundles but
dividing bundles by sections should still be possible.
Where documents are contemporaneous in nature,
e.g. correspondence or supplementary evidence they
should be organised chronologically in the order of
creation.
Whether the hearing is remote or in person it should
be remembered that both counsel and the judiciary
will likely be working from an electronic bundle. It is,
therefore, important to consider the practicalities of
the numbering system used. The PDF and the paper
bundle should be easy to navigate and paginated in
such a way that they function consistently in both formats. For example alphanumeric systems rarely translate well from paper to PDF.
EXPERT WITNESS JOURNAL
Contrary to popular belief a trial bundle can and
should be printed double sided.
Filing and serving the trial bundle is not the end of
the party’s obligations to ensure that the Court has everything it needs to proceed. CPR 32 PD 27.6 requires
originals of documents within the bundle to be available at trial. In practice, however, original documents
may not be available to the litigants or will be outside
their control. Similarly, it may be disproportionate to
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