Bundles - Costs Bundles for a Trial or other Hearing





Introduction


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 Trial 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 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 arguing 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 obtained by rejecting that offer and continuing to a hearing? 

There is also the question of "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 (or expert witness fees) at all. Some courts allow lawyers fees to be claimed but have rules providing fixed limits for different items of work, for example a fixed amount for a barrister's fee for a one day trial. Even if there is no fixed limit, the court/tribunal will not allow amounts which it considers, in the circumstances of the case, to be too much. 

In arguing about who should pay costs and how much should be allowed, each side's barrister will want to show the judge certain documents. Some of the documents will be in the ordinary hearing bundle - for example if there is a question raised about how much should be allowed to be reclaimed for the barrister's fee for drafting the pleadings, the pleadings themselves, which will be in the hearing bundle, can be referred to. But often there are quite a lot of documents which are relevant only to arguments about costs but 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 when costs issues are raised, 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 clearly identified as such so that the judge is aware that they do not need to be considered during the main part of the hearing.          

2. In theory it would be possible for most documents relevant only to costs to be placed in a separate section at the end of the main Bundle, with a section title indicating that they are relevant only to costs (rather than in a separate Costs Bundle) but there may be logistical difficulties in doing this. The main Bundle will be being produced by one party but both parties have to agree what it is to contain and this can lead to delay for practical reasons (if the party producing the bundle is not using a computer system such as Caselines to produce the bundle but is doing it manually using the typewriter/biro/photocopier method, they will typically be providing, initially, just a draft index of documents to be included and it may be unclear to the other side, from the descriptions in the index, exactly what documents are being referred to) and sometimes there is delay due to disagreement (one party may seek to include a document in a Trial Bundle and the other party might object saying that it has not previously been disclosed so that the first party is forced to look through past correspondence to prove that it was disclosed) so putting documents relevant only to costs in a separate Costs Bundle (rather than as a separate section in the main Bundle) is generally preferred to avoid adding any complication or delay to the process of producing the main Bundle.

3. 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 apply to 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.

4. The Costs Bundle also contains “Without Prejudice Except as to Costs Offers” “Part 36 Offers”, “Calderbank letters”, and Open Offers. The first three types of offer must not be seen by the judge before judgment and so must not be in the main Bundle but only in the Costs Bundle. Open Offers can be, and normally are, in the main Bundle but for convenience a further copy of Open Offers in included in the Costs Bundle. Because it contains things such as Without Prejudice Except as to Costs Offers a Costs Bundle is sometimes called a Without Prejudice bundle.   

Organising a Costs Bundle for a Trial

To create a Costs Bundle you need to create a CaseLines "cases" called e.g. Smith v Jones - Bundle 2017-06 - Claimant's Cost Bundle (obviously change the name if you are not the Claimant, etc.).

This 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 at 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. At the various stages of the litigation proceed 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 Caselines, 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).

You should generate a PDF which can be used for double sided printing. To do this using Caselines you need to ensure that the Tabbed option is ticked for all documents so that the first page of every document is always printed on the right hand side. Production of the indexed and paginated trial bundle in PDF Form is automatic and you just tap the Bundle Index button and the button for each section to download PDFs containing the index (which will go at the front) and each section of the bundle. 


Printing out and assembling your Costs Bundle

1. Click on Download Bundle Index button as shown below, then click on each section button below that button to download all the section PDFs. 



2. If you have a suitable fast colour printer which can print double-sided you might choose to print out the bundle PDFs on your own printer or, alternatively, you might use a high street print shop to do this for you. The index PDF should be printed single-sided and the section PDFs should be printed double-sided. Be careful to ensure that A3 (and larger) pages are printed on the correct size paper and either fold them or use a larger binder for them. The bundle must be printed in colour: this is not only because some pages may contain photographs or colour-coded plans but because the page number on every page is in red and red printed in greyscale can be difficult to see.

3. When you have printed all the pages, hole punch them and file them in a ring binder. 

4. Insert a tabs before each section and write the section name on the tab.   

 
   

5. Write the words Claimant's Costs Bundle or Defendant's Costs Bundle, or Applicant's Costs Bundle etc. (depending on which party you are) in large writing, and the name and number of the case (in smaller writing) on a label affixed to the outside spine. For example:

 

CLAIMANT'S COSTS BUNDLE

John Smith v Geoff Jones

Case No 1AB123456



6. A label should also be stuck on the front cover of the ring binder (no need to include case name and number on this label):


CLAIMANT'S COSTS BUNDLE


7. A further label with the same information should also be stuck on to the front inside cover at the top left, in such a way that it can be seen even when the pages of the volume are open.

8. Repeat steps 2 to 7 above to produce several identical copies of your Costs bundle. You generally need one copy for the court/tribunal, two copies for the other side (one for them and one for their barrister), one copy for your barrister, and one copy for yourself.

9. The copy for the other side should be sent to them in good time before the trial. 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. 

Disclaimer

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 June 2017. Disclaimer