Costs Bundle for a trial or other hearing


When there is a trial, or the hearing of an application or appeal, in a civil court or tribunal, the court will refer to documents arranged in a Trial Bundle, Application Bundle or Appeal Bundle which is produced by one of the parties - usually the person bringing the claim or making the application or appealing. In a hearing bundle every page has a page number and there is an index at the front. The judge and each party at the hearing have identical copies of the bundle. In the case of a trial, there will be a further copy of the Trial Bundle in the witness box. When the judge, or a barrister, is referring to a particular page in the copy of the bundle, the other barrister, judge, witness, etc. can easily and quickly refer to the same page in their bundles.

The Trial Bundle, Application Bundle or Appeal Bundle should contain all documents which will be relied on by either party during the hearing - i.e. all documents which need to be referred to by either side's barrister when questioning witnesses and making arguments that the judge should give judgment in their client's favour. At the end of the hearing, after the judge has announced who has won, the question of costs arises. Should the loser be ordered to pay the legal costs of the case incurred by the winner, or at least some of those costs? Is this a case where the winner should pay some of the costs of the loser because, for example, the winner has not won completely and had previously rejected a settlement offer from the loser which was more favourable to the winner than the result the winner eventually obtained by rejecting that offer and continuing to a hearing? 

As well as the principle of who should pay costs and what sort of costs they should pay (e.g. all the other side's costs of the whole case, or only costs incurred in a particular part of proceedings or up to a certain date) there is also the question of quantification ("assessment") of costs - if, in principle, a party is awarded their costs of the case, or their costs from a particular date or for a particular stage of the proceedings, how much money precisely should the other side be ordered to pay them? Different courts and tribunals have different rules about what categories of legal costs can be claimed. Some tribunals only allow a party to claim back the fees that the party has paid to the tribunal, so that the costs award does not include any lawyer's fees at all. Some courts and tribunals allow lawyers' fees to be claimed but have fixed amounts which are awarded for specific items (irrespective of whether the lawyer actually charged the client more or less for that item). Sometimes rather than fixed amounts for specific items there are fixed limits for different items of work so that the amount awarded for that item is the amount the lawyer charged the client, or the fixed limit, or whatever amount the court considers reasonable in the circumstances of the particular case, whichever is less.

The rules of civil courts and tribunals generally allow each party, if they wish, to make settlement offers to the other side which, if not accepted by the other side, the court/tribunal will never see. Of course a party can if they wish make an "open offer" - which the court/tribunal can see, but some people do not wish to make open offers for fear that it might undermine their case in the eyes of the court/tribunal, and the rules aim to encourage parties to consider settlement by providing the facility to make offers which the court/tribunal will never see. These are called "without prejudice" offers.

It is also possible for parties to make offers which the judge can only see after the judge has announced which party wins and what or how much they are awarded. The idea is that people should not be discouraged from making offers for fear of undermining their case in the eyes of the court/tribunal, but once the tribunal has decided who wins (and what or how much they they will be awarded) that is no longer a concern and at that point the judge can be shown the offers previously made and can take those into account (together with any open offers made) when deciding on the principle of who should pay costs. Offers of this type (i.e. offers which the court/tribunal can see but only after it has been decided who wins) may be known as “Without Prejudice Except as to Costs Offers” or “Part 36 Offers” or “Calderbank letters”.

It cases which are relatively easy to decide a judge might announce their decision at the end of the hearing (perhaps after an adjournment of an hour or so) or, alternatively, in more difficult cases a written decision might be sent to the parties a few days (or weeks) later, or a short hearing may be fixed for a few weeks later at which judgment will be "handed down". If a written decision is sent to the parties then they will be given a period of time (say two weeks) in which to make a written application for an order that the other side pay their costs. If, on the other hand, the decision is given at a hearing then the parties might be required, if they they wish to make an application for costs, to make that application at the hearing at which (and immediately after) judgment is given. In a court or tribunal where this is a possibility, each party will be prepared with a Costs Bundle.

Unlike a Trial Bundle, Application Bundle or Appeal Bundle which is sent to the court/tribunal in advance of the hearing, the parties take their Costs Bundles to the hearing and only show them to the judge when the times comes, after judgement, to make an application for costs. This is because the Costs Bundles will or may contain offers of a type (“Without Prejudice Except as to Costs Offers” or “Part 36 Offers” or “Calderbank letters”) which cannot be shown to the judge until immediately after judgment has been given. Because they contains things such as Without Prejudice Except as to Costs offers, Costs Bundles are sometimes called a Without Prejudice Bundles though, of course, they will not contain any offers which are unqualifiedly Without Prejudice since (with some very rare exceptions) unqualifiedly Without Prejudice offers are never seen by the court/tribunal at any time

In addition to offers which the judge must not see until after judgment a Costs Bundle will often contain some documents which there is no prohibition on the judge seeing but which the judge does not need to see until the the issue of costs comes to be considered after judgment. For example there may be correspondence between the parties which is not relevant to the issues in dispute but is relevant to whether a party may have incurred some legal costs unnecessarily or may, by its unnecessary actions, obliged the other side to incur unnecessary costs.

As explained above, in some courts if judgment is given at a hearing (rather than being sent to the parties) a party wishing to apply for costs has to do so immediately after judgment is given. Sometimes, when this happens, the judge will make an order as to the principle of costs (e.g. whether the other side should pay costs of the whole case, or only costs incurred in a particular part of proceedings or up to a certain date) and will leave for another day the question of quantification ("assessment") of the precise amount to be paid. But sometimes a party may be required not only to make an application for an order as to which party should in principle pay costs but may also be required, there and then, to itemise and quantify (and if necessary justify) all the individual items of costs. If there is a possibility of this happening then the Costs Bundle will also contain documents such as a Statement of Costs giving a breakdown of the costs claimed and perhaps correspondence and other documents which help to show why certain items of costs are higher than might otherwise be expected.            
It might be wondered why all costs-related documents which the judge is not prohibited from seeing are not included in the main Trial Bundle, Application Bundle or Appeal Bundle, with only the “Without Prejudice Except as to Costs Offers” or “Part 36 Offers” or “Calderbank letters” in a Costs Bundle. It is true that in arguing about who should pay costs and how much should be allowed, some documents which each side's barrister may want to show the judge may be in the ordinary hearing bundle but often there are quite a lot of documents which may be potentially relevant only to arguments about costs which are not relevant at all to the main part of the hearing itself. For example, if one side has been obstructive on the question of expert witnesses - say a date has been agreed for one side's expert to visit the other side's land but the expert is refused access on the agreed date, thus wasting time and money, and is only able to inspect the land on a second attempt one month later - the correspondence between the parties about that is not relevant to the main part of the hearing, and so doesn't need to be in the main hearing bundle, but that correspondence is relevant to the question of costs because it helps to explain why the expert's fees are higher than usual. Documents, such as correspondence between the parties (or between their solicitors if the parties have appointed solicitors) like this, which are relevant only to costs would be placed not in the main Bundle but in a separate Costs Bundle. The reasons why such documents should normally be in a separate Costs Bundle, rather than in the main Bundle, are as follows.

1. Often the number of documents relevant only to costs is quite large but the judge does not need to consider them during the trial or application, but only after judgement where they are relevant to arguments advanced about costs, and then often only a limited number of documents in the Costs Bundle may need to be considered. In the example above, the barrister representing the party whose expert was initially refused access will, if that party loses and would normally be ordered to pay costs, want to argue that the costs ordered to be paid should be reduced by a percentage because of the other party's unreasonable/inefficient behaviour in the litigation, and will want to refer to the correspondence as evidence of that behaviour. On the other hand if the party whose expert was refused access wins and is awarded costs, it will only be necessary to refer to that correspondence if there is a challenge to the size of the expert witness's fee (which there may not be, or it may be a case where the judge is just deciding the principles as to who pays what proportion of whose costs leaving assessment of costs to another day). Thus it is important, in order to save the court's/tribunal's time, for documents relevant only to costs to be in a separate bundle.

2. Normally each side produces its own Costs Bundle (it would be unusual to have a joint Costs Bundle) containing the documents it wishes to have available to refer the judge to if necessary. Sometimes one side decides not to produce a Costs Bundle as such (i.e. paginated and indexed and in a ring binder) - but just a few documents stapled together - it is up to each party and often depends on how many documents there will be.  So having Costs Bundles separate from the main Bundle means that each side can "do its own thing" without delaying, or being delayed by, the process of producing the main Bundle. What documents can be placed in a Costs Bundle is not subject to the same rules as for the main Bundle. In the case of the main Trial Bundle, documents cannot (without special permission) be included if they were not previously disclosed. This rule does not bite on the Costs Bundle because the parties are not obliged to disclose in advance documents relevant only to costs which are not probative of disputed issues in the case itself. Indeed it is quite usual and understandable for a party not to, and not to want to, provide receipts and invoices for such things as legal advice, contemporaneously, because that would give the other side information which might be tactically useful to them (revealing contemporaneously when advice is being sought and how much it costs - cost is an indication of the extent and complexity of the advice sought - can, even though the content of the advice is not revealed, in some circumstances give the other side an unfair tactical advantage). Normally most of the documents in the Costs Bundle are correspondence between the parties which, of course, both sides will have anyway.

Organising a Costs Bundle

You can create a Costs Bundle using Bundledocs and/or standard PDF software. All of the documents which might need to be in the Costs Bundle should already be in the For Costs Arguments Bundledocs case. The bundle will typically contain sections such as these:

1. OPEN AND WITHOUT PREJUDICE OFFERS containing, in chronological order, all open offers, without prejudice except as to costs offersproposals for mediation, Calderbank offers, and Part 36 offers (but not offers headed merely without prejudice).

2. Correspondence regarding proposals for mediation (but not anything about what happened inside any actual mediation meeting).

3. Then there should be a section containing all orders the court/tribunal has already made about costs. For example at a previous hearing a judge may have made a cost capping order or may have approved a party's costs budget (in this case the budget as well as the order approving it should be included). At a previous application hearing the judge might have ordered one side or the other to pay the costs of a previous application so that those costs have already been dealt with and should not be counted again. Or at a previous hearing the judge might have made "no order as to costs" which means that neither side can claim costs associated with that hearing whatever the final outcome of the case, so, again, those costs must not be included in the costs claimed by a party. Or at a previous hearing the judge may have ordered "costs reserved" which means that (unless dealt with subsequently at a further hearing before trial) the trial judge decides who should pay the costs of the previous hearing (this would be the case anyway but the judge ordering "costs reserved" is indicating to the trial judge - who may be a different judge and, even if the same judge, is unlikely to remember all details of the previous hearing - that the costs of the previous hearing should not necessarily be awarded to the eventual winner of the case).  

4. Decide what other documents you will be including in your Costs Bundle. They will generally be documents relevant to costs which are not in the main Bundle but, although avoiding duplication is a good general policy, it is slightly less important in a Costs Bundle. In the example above of an expert being refused access, you may have included in the main Bundle a letter in which the time of the visit was confirmed by the other party, together with a subsequent letter complaining that access was refused on that date, because you judge them relevant to the issues in the case including credibility of witnesses (e.g. if it is suspected that the party refusing access did so in order to give themselves an opportunity to cover something up, and they are to be cross-examined on that). You will want to include in your Costs Bundle all the correspondence at the time about the expert witness which is relevant to costs and this will include the couple of selected letters which are also in the Trial Bundle so that if you need to refer the judge to this run of correspondence in your Costs Bundle when making arguments about the costs of the expert, the judge can easily read it without having to jump from one bundle to the other.      

5. Then decide how to lay out the documents identified in (4) above in sections. The question of who should pay costs is often decided by the judge on a fairly broad-brush basis with the judge needing to be persuaded (often with only a few minutes available to do the persuading) if they are to depart from the usual rules (that the loser pays etc.) so it can be useful to lay out the documents supporting each argument which can be made in separate sections so that for each argument which is run (and obviously it can be necessary to be selective as to which arguments to run in the limited time available for costs arguments, in the light of the outcome of the trial) the judge can be invited to read the correspondence relevant to that argument which is all in one place. If sections are laid out in this way some correspondence may be duplicated between sections but this generally does not matter as the judge will probably only read sections which they are, after judgement, specifically invited to, so this moderate degree of duplication is actually a help not a hindrance for the judge.

6. As the litigation proceeds through various stages either party may have provided an interim schedule of costs incurred or an estimate of costs to be incurred. There should be a section containing these.

7. The last section will contain the final Statement of Costs (often the Statement of Costs has to be delivered separately in advance but it is convenient to also include a copy in your Costs Bundle). This section may also contain invoices (e.g. for barristers fees, expert witness fees, the fees for using Bundledocs, etc.) supporting the Statement of Costs. Invoices are included where there is a possibility that the court might make a summary assessment of costs (i.e. decide, immediately after judgment not just who pays what proportion of whose costs but actually go on to assess costs and order a specific precise figure to be paid, rather than leaving assessment to a later date).

8. Note that the copy for the other side should be sent to them in good time before the trial (or it might be agreed that you will just send them an eBundle which they can print of they wish). The copy for the court/tribunal is not sent to the court/tribunal in advance but is taken along and not handed up until after judgment.


The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.

There is some variation between the procedural requirements of different tribunals and courts for different types of case. The above explanation of procedural rules relating to bundles is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the procedural law would say about your own situation. So please do not rely on the above but contact me for advice.

This page was lasted updated in May 2020. Disclaimer