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Editorial: Trial Bundles - Aidan Ellis, Temple Garden Chambers

20/12/18. Instead of my usual December ‘review of the year’, I will end 2018 with some thoughts about trial bundles. I have had a significant number of trials this month (not all effective), and in many of them issues have arisen (or could have arisen) about the state of the trial bundle. It may therefore be helpful to offer some comments borne from experience of using trial bundles in practice.

First, if there is any dispute about the admissibility of a document, the party challenging the document should not allow it to be included in the agreed bundle. There are at least two reasons for that. First, if the document is in the bundle, the Judge may well have come across it in his pre-reading. Second, if a document is included in an agreed bundle, that document becomes admissible unless the court orders otherwise or the challenging party has given written notice of their objection (see the Practice Direction to Part 32). The act of agreeing to a document’s inclusion in the bundle thus makes it harder to object to the document at the hearing.

Second, it is unhelpful to include multiple copies of the same document. I have had trials where the medical report appears in the bundle four times: behind the Particulars of Claim; annexed to an application; annexed to the Claimant’s statement and in the section for the medical evidence. This wastes preparation time and has the potential to cause confusion at the hearing.

Third, it is worth putting some thought into what documents actually need to be in the bundle. Clearly, anything on which the witnesses will be cross-examined should go in. But documents are often included which are very unlikely to be relevant. For instance, it is not uncommon to find the parties’ directions questionnaires, which have ordinarily ceased to have any relevance by the time that a case gets to trial. Moreover, I wonder whether it is necessary to include Claimant’s complete medical records in the bundle. Of course, there should be cross-examination on relevant records but it ought to be possible to identify in advance which records are likely to be relevant. In a soft tissue injury case, the Court doesn’t need to review childhood ailments and vaccinations for an adult Claimant. On many occasions, the records contain something personal or potentially embarrassing which has no relevance whatsoever to the injury in issue in the proceedings.

It may be rare for mistakes in the preparation of the bundle to affect the outcome of trial. But it can happen. At the very least, in my experience a poorly prepared bundle irritates the tribunal, which can affect the case in a variety of ways including in case management decisions and costs.

Aidan Ellis
Temple Garden Chambers

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