Preparing trial bundles
Preparing trial bundles

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Preparing trial bundles
  • Importance and purpose of trial bundles
  • Responsibility for preparation
  • Contents of the trial bundle
  • Foreign language documents
  • Illegible documents
  • Arrangement of trial bundles
  • Agreeing the trial bundles
  • Core bundles
  • Authorities bundle
  • More...

Note: this Practice Note deals with the preparation of bundles for trial. For information on preparing bundles for interim applications, see Practice Note: Application hearings—Application bundles and for the Commercial Court, see Practice Note: Commercial Court—interim applications. For information on preparing bundles for an appeal, see Practice Notes: Appeals to the County Court or the High Court—the appeal bundle, Appeals to the Court of Appeal—bundles and Supreme Court—appeal hearing.

Coronavirus (COVID-19): the Courts and Tribunals Judiciary has published a protocol to aid civil courts in conducting remote hearings as a result of the coronavirus (COVID-19) outbreak. The protocol applies in the County Court, High Court, and Court of Appeal (Civil Division), including the Business and Property Courts, and provides guidance on preparing electronic bundles for hearings and trials (see paragraphs 24 to 26 of the protocol). The remote hearing protocol was published on 20 March 2020 and updated on 26 March 2020. For further detail, see: LNB News 23/03/2020 89—Guidance on civil court hearings issued in light of coronavirus (COVID-19) and LNB News 01/04/2020 71—Guidance on civil court hearings issued in light of coronavirus (COVID-19) updated. For detailed guidance on the use of audio and video-conferencing for hearings during the coronavirus pandemic, see Practice Note: Remote attendance at court—video-conferencing and telephone hearings—Use of audio and video-conferencing for hearings in times of Coronavirus (COVID-19). For guidance

on preparing bundles in the Queen’s Bench Division during the pandemic, see: LNB News 09/04/2020 69—Coronavirus (COVID-19)—Guidance for Queen's Bench Division Court Users. For news and other resources to assist general dispute resolution practitioners working in the civil courts to understand and stay ahead of fast-moving changes in the civil courts’ processes and procedures necessitated by the coronavirus pandemic, see Practice Note: Coronavirus (COVID-19) implications for dispute resolution.

Importance and purpose of trial bundles

The purpose of a trial bundle is to provide all documents which are central to the parties’ cases and to which either party’s counsel will need to refer at trial. The trial bundle will not contain all documents that have been disclosed and should not contain irrelevant or superfluous documents.

Whether trial bundles have been prepared properly or not can make an enormous difference to the ease with which a case proceeds at trial. A clear and well-organised bundle will make life easier for the parties and, crucially, the judge. If the bundle is not properly prepared this could damage what might otherwise be a good case and adverse cost consequences may result. For further information on cases where the judge has either criticised or praised the trial bundles, see: Case authorities on trial bundles.

You should start planning the preparation of trial bundles in good time to meet the filing deadline, in respect of which, see Number of copies required and time for filing.

The CPR contain rules on how trial bundles should be prepared and what should be included in them and this is largely contained in CPR 39 and CPR PD 32. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions set out in the specific court guides—see: Court specific guidance.

Responsibility for preparation

Unless the court has ordered otherwise, the claimant is responsible for preparing trial bundles (CPR 39.5(1) and CPR PD 32, para 27.7).

If the claimant is unrepresented the court may direct another party to prepare the bundle (CPR PD 32, para 27.7). For more information on preparing trial bundles where a litigant in person is involved, see Practice Note: Litigants in person—trial and non-attendance—Preparation of trial bundles.

In the small claims track, CPR 39 (except rule 39.2—general rule that hearing is to be in public) does not apply so no trial bundles are required (CPR 27.2(1)(h)). For more information on case management in the small claims track, see Practice Note: Small claims track—case management.

Contents of the trial bundle

The trial bundles should include any documents required by any relevant practice direction or by any court order (CPR 39.5(1) and CPR PD 32, para 27.3).

Preparation of the trial bundles involves putting together a ring binder or lever arch file (or files) of documents which might be referred to at trial (CPR PD 32, para 27.9). Where there is more than one bundle, they should be clearly distinguishable, for example, by different colours or letters (CPR PD 32, para 27.9).

The contents of the trial bundle should also be agreed with counsel in addition to agreeing them with the other side. For more information on this, see: Agreeing the trial bundles.

Where there is a failure to comply with the requirements set out in CPR 39 and CPR PD 32 eg the excessive inclusion of unnecessary documents or the incompetent preparation of trial bundles, the court may make an adverse costs order to reflect this, for example by reducing the amount of costs sought or by making an order for indemnity costs. For guidance, see Practice Notes: Cost orders—the general rule and the court's discretion, Costs orders—effect of conduct and misconduct and Indemnity costs orders—illustrative decisions.

The following must be included in a trial bundle unless the court has ordered otherwise (CPR PD 32, para 27.5):

  1. the claim form and all statements of case

  2. a case summary and/or chronology, where appropriate

  3. requests for further information and any responses received

  4. all witness statements which are going to be relied upon as evidence

  5. witness summaries

  6. any notices of intention to rely on hearsay evidence under CPR 32.2 (see Practice Notes: Witness evidence—giving evidence at trial and Hearsay evidence in civil litigation)

  7. any notices of intention to rely on evidence (eg a plan or photograph) under CPR 33.6 which is not:

    1. contained in a witness statement or expert report

    2. being given orally at trial

    3. hearsay evidence

  8. any medical reports and responses to them

  9. any experts’ reports and responses to them. It may be convenient in some complex cases to have the experts’ reports in a separate bundle which are cross referenced to the main bundle (CPR PD 32, para 27.10)

  10. any order giving directions as to the conduct of the trial (it is often helpful in all but the most complex of cases to include all court orders in the bundle, even if they do not relate directly to the conduct of the trial)

  11. any other necessary documents—include every document which does not fall into any of the other categories, but which is admissible in evidence and which either party might wish to refer to in the course of the trial

The trial bundles are likely to contain correspondence between the parties. But they should not contain:

  1. 'without prejudice' correspondence (unless the parties have agreed to its inclusion), or

  2. any reference to CPR 36 offers or payments

For more information on without prejudice communications, see Practice Note: Without prejudice communications. For more information on CPR 36 offers, see: Part 36 offers—overview.

Foreign language documents

If you have documents in a foreign language they should be translated (agreed if possible or separate versions provided if not), with the translation included next to the original—see: Court specific guidance.

Illegible documents

If there is an illegible document in the bundle you should have a copy of that document typed out and included as the next item in the bundle with suitable cross-referencing (CPR PD 32, para 27.11).

Arrangement of trial bundles

How the bundles are arranged will depend on the number of documents to be included and what is agreed with the other side but bundles are likely to be separated into the following bundles/categories of documents:

  1. core bundle—see: Core bundles

  2. statements of case, court orders, further information provided pursuant to CPR 18 or by consent, witness statements, expert reports, list of issues, any case summaries or hearsay notices etc

  3. skeleton arguments—these are often included separately. Providing these separately where bundles are provided electronically also allows the judge to view the skeleton arguments and bundles on separate screens

  4. inter-party correspondence

  5. documents produced as part of the disclosure exercise that the parties will wish to refer to at trial (sometimes known as the ‘contemporaneous documents’ or ‘chronological bundle’). These should be assembled as a single unit in chronological order of creation (CPR PD 32, para 27.14)

  6. authorities—see: Authorities bundle

Within each category the documents should in most cases be listed in chronological or reverse chronological order.

Agreeing the trial bundles

The parties should try to agree the contents of the bundle (CPR PD 32, para 27.12). Where it is not possible to agree the contents of the bundle, a summary of the points on which the parties are unable to agree should be included (CPR PD 32, para 27.12).

The parties should also try to agree, if possible, that the documents in the bundle (CPR PD 32, para 27.12):

  1. are authentic, and

  2. that they can be treated as evidence of the facts stated in them even if no hearsay notice has been served. For further guidance on hearsay evidence, see Practice Note: Hearsay evidence in civil litigation

Core bundles

If there are numerous bundles you should also prepare a 'core bundle' containing the core documents essential to the proceedings, with references to the supplementary documents in the other bundles (CPR PD 32, para 27.9).

Core bundles are likely to be paginated with their own numbering, in addition to that from the main set of bundles, but this may depend on the court in which your claim is proceeding—see: Court specific guidance.

Authorities bundle

Counsel is likely to provide solicitors with a list of the authorities which are to be referred to at trial for inclusion in this bundle and this will need to be agreed with the other side. For more information on authorities and how they should be cited, see Practice Note: Preparing for trial—Authorities.

Paginating and updating bundles

The trial bundle should be paginated (continuously) throughout and indexed with a description of each document and the page number (CPR PD 32, para 27.8). Where the total number of pages is more than 100, numbered dividers should be placed at intervals between groups of documents (eg statements of case, witness evidence, correspondence) (CPR PD 32, para 27.8).

The pages should be numbered sequentially. Do not put the numbers too close to the edge of the page or they may be obscured when you photocopy them. Also ensure that the pagination is distinct from any existing numbering that appears on the documents.

Where there are large numbers of documents it may be advisable to start a new set of pagination within each tab or category of document and have a separate index for each category. This will make it easier to insert and paginate additional documents added at a later stage.

It is advisable to leave some space in the files for documents which may be added either just before or during trial. If additional documents need to be added at trial, remember to paginate them and add them to the relevant index and all copies of the bundle, including the court’s copy (you will need to arrange with the judge’s clerk as to how this should be done).

Once the bundle has been paginated, if any mistakes in pagination come to light (eg missed numbers) or any documents are removed (eg because they are duplicates) it is usual to add a blank page as a marker for the missing document which is paginated with the appropriate sequential number and which states in the middle of the page ‘This page has been left blank intentionally’. This is to avoid queries at a later stage as to why there are gaps in the pagination.

Number of copies required and time for filing

Unless the court directs otherwise, documents in the trial bundle should be copied double sided (CPR PD 32, para 27.15).

Although the exact practice will vary depending on the court in which the claim is proceeding (see: Court specific guidance), generally:

  1. the claimant should file one copy of the bundle with the court not less than three (and not more than seven) clear days before the trial is due to start (CPR 39.5(2) and CPR PD 32, para 27.4)

  2. copies should be provided to all the opposing parties and for the use of witnesses, ideally at the same time (CPR PD 32, para 27.13)

  3. one copy should be delivered to your barrister (or solicitor advocate)

  4. one copy should be left in the witness box during the trial

  5. you should keep a version containing the original version of any document you have put in the trial bundle so that it is available at trial (CPR PD 32, para 27.6)

The court will not accept breakdown of photocopiers as a viable excuse for not producing the trial bundles so if there is a risk you may be unable to complete this in house, consider producing a complete set of the trial bundles and then sending out to commercial printers for the further copies required.

It is advisable to call the judge’s clerk in advance to warn that the bundles are being delivered, especially if there are a large amount of files to be delivered. If large numbers of files are to be delivered you will also need to arrange suitable transport well in advance.

Note also that bundles belonging to barristers, solicitors and witnesses should be removed from the court at the end of the trial but that this does not apply to the court’s filed copy.

Electronic bundles

The CPR provide for bundles to be in paper form unless otherwise ordered (CPR 39.5(1) and CPR PD 32, para 27.9). Where the bundles will be extensive you may wish to consider whether electronic bundles might offer cost and time benefits and seek an order that bundles be filed electronically. Electronic trial bundles can offer significant benefits over paper bundles in, for example, the costs of preparation, the time taken at trial to locate relevant documents, less wastage (in terms of creating new bundles) where parties are unable to collect their bundles from the court in time etc. An external provider will usually be instructed to prepare the electronic bundles. For further information on electronic bundles, see Practice Note: Electronic bundles in civil proceedings.

Practical steps to take when preparing bundles

The preparation of bundles can be a very time consuming task, especially in a large matter and so it is important to start the preparation early and engage with the other side at an early stage to obtain agreement on the process to be adopted. The following sets out a suggested approach for the party with responsibility for preparing the bundles:

  1. liaise with your counsel and engage with the other side at an early stage to agree the approach to be adopted, setting out a suggested timetable if appropriate—this will include agreeing whether bundles are to be provided in paper or electronic form and how they will be arranged—see: Arrangement of trial bundles

  2. in conjunction with counsel, prepare a draft index listing all the documents, separated by category (statements of case, inter-party correspondence, disclosure etc)

  3. send the draft index to the other side and agree what documents are to be included in the bundles

  4. once the draft index has been agreed, prepare a master copy of the bundles

  5. paginate the master copy—see: Paginating and updating bundles

  6. mark up the spines and front covers of the master bundle. It is also advisable to add the same information on a sticker on the inside cover of the file for ease of use when the files are open

  7. photocopy the master bundle so that sufficient copies are available—see: Number of copies required and time for filing

  8. send copies of the bundles to the court, other side, witnesses, experts etc—see: Number of copies required and time for filing

Where you do not have responsibility for preparing the bundles

It is in both party’s interests for the bundles to be good and ready on time and so the party that does not have responsibility for preparing the bundle needs also to be pro-active in agreeing the procedure to be adopted and the documents that will need to be included in the bundles. This party should be considering what will need to be included in the bundles before they receive the first draft index. If there is any delay in the production of bundles by the party with responsibility for producing them, the opposing party will need to be pro-active in getting the process started.

Disputes over authenticity of documents—CPR 32.19

Any document which has been disclosed is deemed to be authentic unless you serve a notice under CPR 32.19 indicating that you wish the document to be proved at trial (CPR 32.19). Any such notice should usually have been served long before trial and the court may not grant relief from sanctions for a late application to dispute authenticity to be heard shortly before or during trial where a party should have made the application earlier—as happened in UTB LLC v Sheffield United—see News Analysis: Relief from sanctions from a late challenge to authenticity of documents (UTB LLC v Sheffield United Ltd). For more information on the authenticity of disclosed documents, see: Authenticity of disclosed documents—CPR 32.19.

Case authorities on trial bundles

In Natas Group v Styles & Wood, the court criticised the claimant's solicitors’ failure to provide the trial bundles on time. It noted that the claimant's solicitor was responsible for preparing the trial bundles, and a lack of resources, both in terms of solicitors and photocopiers, was not a viable excuse for not preparing them in accordance with the timetable set out at pre-trial review. There is a requirement for all those involved in proceedings to have copies of the trial bundles: for counsel, to enable them to prepare opening submissions and cross examination of the witnesses with reference to the trial bundles; for the solicitors, to allow witnesses access to them; and for the judges, who needs time to read them. For a detailed analysis of this case, see News Analysis: Under resourcing of case criticised by court (Natas Group v Styles & Wood).

In contrast, in Energy Venture Partners v Malabu Oil and Gas, the court praised the parties for the way in which they had presented the extensive documentation, case materials, authorities and daily transcripts. Their presentation in 'a highly organised and easily accessible electronic format' meant the court was able to conduct a virtually 'paperless trial'. This 'enabled the trial to be concluded within the allocated timetable and with the maximum efficiency'. It also allowed the court to access the trial bundles electronically, something Lady Justice Gloster had found to be a 'considerable advantage'.

In Swift v Fred Olsen

, the appellant argued on appeal that the judge had ignored vast tranches of its evidence, namely 25 lever arch files, and had therefore based his decision on limited factual evidence. The Court of Appeal rejected the appeal on the basis that specific evidence had not been taken into account. Rather it has been a matter for the appellant to decide how best to adduce the 25 lever arch files in evidence during the trial but it had failed to do so—the notion that the 25 files be simply left available to the judge to dip into untutored was 'fanciful'. From a practical perspective, it is therefore critical that factual evidence is properly presented at trial, failing which an appeal on this basis will not be available.

Popular documents