WHAT DOCUMENTS SHOULD BE INCLUDED IN BUNDLES? “HUGGER-MUGGER” BUNDLES, WITH CRUCIAL DOCUMENTS MISSING: THE “ABILITY PROPERLY TO TEST THE EVIDENCE OF THE OTHER SIDE”

The judgment of HHJ Paul Matthews in Bains v Irshad & Anor [2025] EWHC 491 (Ch) contains much of interest (not least there are not many civil judgments which end with the judgment stating that, because of the claimant’s evidence, the matter is to be referred to the Director of Public Prosecutions).  However, this being Civil Litigation Brief, we are returning to the (reader’s) favourite subject bundles.  The parties in the case were diametrically opposed as to what should be in the bundle.  The bundles that were prepared were all “hugger-mugger” and, of course, crucial documents did not make their way to the bundles at all.

“… the party with carriage of the bundle should normally allow the other party or parties to have included whatever documents from the disclosure they wish. Of course, attention should be paid to the guidelines in the Chancery Guide. However, contrary to the claimant’s counsel’s view in this case, there can be no obligation on a party to justify to its opponent the inclusion in the bundle of documents which have already been disclosed in the course of the proceedings, and by which the opposite party cannot be taken by surprise. If there were such an obligation, it might (for example) disclose important aspects of a party’s approach to cross-examination, which might rob that technique of its important ability properly to test the evidence of the other side.”

THE CASE

The claimant brought an action seeking proceeds of the sale of a hotel. The claimant was unsuccessful.

THE ISSUE ABOUT THE BUNDLE

The Court had ordered the parties to lodge an agreed trial bundle.  Unusually there was a dispute as to what should go into the trial bundle. The claimant’s counsel contended that the bundle should only include documents that had been referred to in pleadings or witness statements, the defendant argued that the bundle could contain any document that may be of relevance.

THE JUDGMENT ABOUT THE BUNDLE

THE TRIAL BUNDLE

The general position

1. 1. It is regrettably necessary for me to record that there were a number of problems with the trial bundle. In the usual way, the parties in this case were to agree it, and the claimant was to prepare and lodge it: see CPR Part 32 Practice Direction, paragraph 27.7; The Chancery Guide, paragraph 12.36; and paragraph 3 of the order of DJ Wales of 31 August 2023. This was reiterated in detail in the order made by me at the pre-trial review on 14 October 2024. That order provided in part as follows:

“5. The Parties shall agree an index to the trial bundle by 4pm on 5 November 2024.

6. The trial bundle shall contain a bundle of core documents (comprising the documents to which the parties are likely to refer regularly).

7. The Claimant shall provide the Defendants with an electronic copy of the bundle by 4pm on 12 November 2024.

8. The Claimant shall file the trial bundle in hard copy (to include a copy for the witnesses) by 4pm on 18 November 2024.”

This case

1. 1. However, despite the clarity and mandatory language of the order, this was not complied with. In particular two bundles were filed for trial, one from the claimant and one from the defendants. It is clear from the correspondence between the parties that they could not agree on what should be included in the trial bundle. The claimant’s position was that documents should not be included in the trial bundle unless they were referred to in the parties’ witness statements, and that the defendants’ position was that there was no such rule. Thus, in an email of 30 October 2024 to the defendants’ solicitors, the claimant’s barrister said (6/83):

“The trial bundle should contain the documents referred to in evidence. Please identify which witness has referred to them or will refer to them.”

1. 1. By email dated 31 October 2024, she further said (6/88):

“Cross examination is about putting your case to our witnesses. We are struggling to see where these documents come up in your case. If you wanted them to be part of your case, they should have been in the evidence so that the Claimant had a fair opportunity to challenge them. We do not condone and neither will the Court an approach where all of your disclosure is included as a means of taking the Claimant by surprise, where it is not referred to in evidence.”

1. 1. In their email to the claimant’s barrister of 1 November 2024 (6/87), the defendants’ solicitors replied that in their view

“there is no requirement for the trial bundle to be linked to evidence.

We will not be identifying why each document should be included in the trial bundle or where it has been referred to in the Defendants’ case. The request is disproportionate, unreasonable, and entirely unnecessary (and there is no requirement for you to the same). The documents are requested for inclusion in the bundle so that they can be referred to by counsel and in cross examination.

The courts expect the bundle to be jointly prepared and this intended to be a collaborative process. We are not trying to be obstructive. Either you agree the documents can be included in the joint bundle, or, if you refuse, we will file a separate bundle of the disputed documents for use at trial and you can explain your position to the judge.”

1. 1. I was not aware of this correspondence at the time. On 14 November 2024, having merely noted from the court file that each side appeared to have lodged a separate trial bundle, I caused the following message to be sent to both sides:

“I can see from CE-File that both the Claimant and the Defendant appear to have filed separate trial bundles, neither of which complies with the Chancery Guide. Please tell the parties that this contravenes my order of 14 October 2024 at the PTR requiring a single bundle. Unless there is a single trial bundle, complying with the Chancery Guide, the trial cannot go ahead on the listed dates.”

As a result, a link to a new, single, electronic trial bundle was sent to the court on 15 November 2024, and it was filed in hard copy with the court on 18 November 2024.

The law

1. 1. In the correspondence, both sides referred to dicta from the decision of Constable J in Innovate Pharmaceuticals Ltd v University of Portsmouth HEC [2023] EWHC 2394 (TCC). The claim was one for breach of contract and in the torts of misrepresentation and fraud. The defendant sought to adjourn the imminently forthcoming trial on the basis that the trial bundle contained documents to the inclusion of which it did not agree. The application was refused.

1. 1. In the course of his judgment, the judge said:

“12. The trial bundle should contain, and contain only, those documents which are likely to be referred to at the trial. It is not difficult to prepare and it is a source of amazement how often parties are unable to co-operate constructively over the preparation of an appropriately relevant set of documents for trial. The starting point for inclusion within a chronological run of documents within a trial bundle will be those documents referred to within the pleadings, witness statements or expert reports. This is likely to contain the majority of documents that will be referred to at trial (indeed, it could contain substantially more, but where they have been referred to by a witness, factual or expert, the default position is that their inclusion should generally be unobjectionable). In addition, each side may wish to rely upon some documents from their own disclosure (although it is likely that such documents will already have been included in one of the foregoing categories if it is probative) and, more likely, some documents taken from the other sides’ disclosure which are considered to be helpful to their own case and which are likely to be deployed in cross-examination. No proper criticism can be made that such an assessment may be conservative, and it is inevitable that the trial bundle will contain some documents that will never be referred to … “

1. 1. I respectfully agree. Whether documents should be included in the trial bundle is not answered by asking whether they are intended to form part of the evidence. Instead, only the starting point for inclusion is documents referred to in statements of case, witness statements and expert reports. Most of such documents will indeed be part of the evidence (on either side). But that is, as I say, just a starting point. Other documents to be included in the bundle will be those that are thought by a party to be in some other way helpful to that party’s case (without necessarily being referred to in court documents or being part of the evidence to prove the case), eg by being intended for use or possible use in cross-examination, or for otherwise weakening the other side’s case, and indeed those which are or may be referred to by the advocate at trial simply for the purposes of exposition and explanation. The court cannot tie the advocate’s hands in advance as to how to conduct the trial. It is necessarily a shifting landscape, dependent on what happens from one moment to the next. Much of the preparation for it will therefore be “built in”, just in case. Clearly, an over-cautious party who insists on including too much will run the risk of being penalised in costs at the end of the day, even if he or she otherwise is successful, but that is a different matter.

1. 1. What this means is that, when the parties agree a bundle, they are agreeing only as to the materials which the parties consider that the judge is likely to need and therefore should have before him or her for the purpose of deciding the case. They are not however agreeing that what each of these documents says is true. Of course, as I have already said, CPR Part 32 Practice Direction, paragraph 27.2, makes documents contained in bundles which have been agreed for use at a hearing admissible at that hearing as evidence of their contents, unless the court otherwise orders or a party objects. That provision saves a lot of unnecessary formal evidence (merely proving documents) having to be produced at trial. But mere admission in evidence is a long way from agreeing the truth of the contents of the documents concerned. In any case, a party has the absolute right by notice to object even to admissibility in evidence (obviously at risk as to costs). So, a party is not prejudiced by agreeing to the inclusion of documents in a bundle.

1. 1. In general, therefore, the party with carriage of the bundle should normally allow the other party or parties to have included whatever documents from the disclosure they wish. Of course, attention should be paid to the guidelines in the Chancery Guide. However, contrary to the claimant’s counsel’s view in this case, there can be no obligation on a party to justify to its opponent the inclusion in the bundle of documents which have already been disclosed in the course of the proceedings, and by which the opposite party cannot be taken by surprise. If there were such an obligation, it might (for example) disclose important aspects of a party’s approach to cross-examination, which might rob that technique of its important ability properly to test the evidence of the other side.

1. 1. In addition, I disagree with the claimant’s counsel’s view that “Cross examination is about putting your case to our witnesses”. It includes that, but it is not confined to it. It extends further, for example to cross-examination as to credit, and to weakening the evidence put forward on the other side. Nor can it be said, as the claimant’s counsel said in the correspondence, that disclosed documents should not be “included [in the bundle] as a means of taking the Claimant by surprise” If documents have been disclosed, then ex hypothesi they do not take the recipient by surprise. That is, after all, the point of disclosure. They have already been disclosed.

The bundle in this case

1. 1. The form of the bundle as eventually filed by the claimant was to divide it into several sub-bundles, as follows:

1. Statements of case, orders and evidence

2. Core Bundle Scott Schedule and bank statements

3. Claimant’s documents

4. Defendants’ documents

5. Invoices (Claimant)

6. Correspondence

1. Nevertheless, it still did not comply with the rules. There was, for example, no single chronological bundle (see The Chancery Guide, Appendix X, paragraph 11(c)). Instead, there were two sub-bundles, one from the claimant’s disclosure and one from the defendants’ disclosure. Moreover, neither of these sub-bundles was chronological either. Documents were placed hugger-mugger next to each other. Worse still, there were a large number of duplicates, contrary to The Chancery Guide, Appendix X, paragraph 12(g). Finally, and as I note in the course of this judgment, there were a number of documents of some importance which for some reason were not included in the bundle. However, we are where we are. In this judgment, I refer to particular pages in the bundle in the form X/XXX, where the number before the stroke refers to the sub-bundle, and the number after the stroke refers to the page number in that sub-bundle.