NOTE This article is about producing a Trial Bundle for a tribunal case.. For information about producing a Trial Bundle in a civil court case see here
When there is a trial, the tribunal will refer to documents arranged in a Trial Bundle which is produced by one of the parties - usually the party bringing the proceedings. In a Trial Bundle every page has a page number and the judge and each party at the hearing have identical copies of the Trial Bundle. There is another copy of the Trial Bundle in the witness box. When a witness is asked to look at a particular page in the copy of the bundle in the witness box, the parties and the judge can easily and quickly refer to the same page in their bundles.
(A bundle like this can also be used outside of tribunal hearings - e.g. as a convenient way to arrange and present documents when you ask a barrister to advise you on your case.)
As well as being paginated - having each page numbered consecutively - the Trial Bundle will have an Index at the front. Despite its name, the Index is not like the index of an ordinary book. An ordinary non-fiction book will have a table of contents at the front listing each section or chapter in the order it appears with the page number, and there will also be an index at the back listing alphabetically people, places, topics etc. with the page number where that person, place, or topic is referred to in the book. The Index of a Trial Bundle is not at all like an alphabetic index that you find at the end of a typical book. It is at the front and is really a table of contents, but is more detailed than the table of contents in the average book because it lists every document in the Trial Bundle with its page number. Why is it called an Index? The word Index is actually an old word for a table of contents, rarely used in this sense now outside the legal context, but this is still its primary meaning when used by lawyers and judges.
The Index at the front will list every document in the Trial Bundle, giving the date of the document, a brief description, and the page number. The purpose of the Index is, of course, to enable judges and lawyers to quickly find a document they are looking for, but, because the index is large, it is also important that the documents are arranged in the bundle in logical order so that the index (which, of course, lists them in the the same order) is easy to use - i.e. it should be possible to guess roughly where a document is likely to appear in the index so that, in most instances, it is not necessary to search all the way though a long index. A trial bundle will be arranged in sections and, within each section, documents will generally be in chronological order. How many sections there are, and in what order they appear, will vary from tribunal to tribunal. Most cases before Employment Tribunals, for example, are concerned with how the parties have behaved towards each other over a period of time and what motivations can be inferred from what they have said and done. Consequently Employment Tribunal trial bundles typically have a large section of documentary evidence - generally letters, memos and emails - arranged purely chronologically, following on from a section containing each party's Statements of Case which will typically have been drafted before most of the documentary evidence was disclosed. On the other hand in Land Registration cases in the Property Chamber of the First Tier Tribunal, which are referred to that tribunal by the Land Registry, the parties are required to identify and list, actually in their Statements of Case, all the key documents they rely on and attach those to the Statement of Case. It is possible to do this because they key documents will mostly have been identified at the Land Registry stage and will be limited in number. In these circumstances the trial bundle is typically divided into a section of documents relied on by one party (following that party's Statement of Case), and a separate section for documents relied on by the other party (following that party's Statement of Case). The order and number of sections in the following example is just one possibility as an illustration of how trial bundles for tribunals are constructed.
Statements of Case - otherwise known as "pleadings". These are the documents drafted by each party's barrister which set out, in summary and often in a technical legal manner, what each party alleges. These would generally be in chronological order within this section.
Orders. Tribunal orders, otherwise known as directions, are written decisions made by the tribunal about how the parties are to prepare for the hearing, for example whether a party may use an expert report, and by what date documents and witness statements are to be provided by one party to another. Orders would be in chronological order within this section.
NOTICES for VIDEOS and AUDIO files. This section name is in CAPITALs to draw attention to the fact that, in addition to the pages in the bundle itself, there is video/audio evidence. Where video and/or audio files are to be used at trial, often the tribunal rules require a formal Notice to be served by the party relying on them, and such Notices are stored in this section. If formal Notices are not required to be served, then a note should be stored in this section listing the audio and video files and stating where they are - e.g. on a USB Drive in a plastic pocket on the following page.
Photographs Any relevent photographs, in chronological order.
Other Documentary Evidence. This is usually the largest part of the Trial Bundle and consists of documents which came into existence in the ordinary course of events in the past such as letters, purchase orders, invoices, written agreements, emails, diaries, logs etc. which tend to prove or disprove a party’s case on an issue in dispute. Usually documents are best arranged chronologically within a single section regardless of the document type, whether contract, purchase order, invoice, letter etc., so that the historical sequence of events can be seen. However, where there are, in addition, a large number of documents in particular categories, such as bank statements over a number of years, or title deeds for a particular property, it would normally be appropriate for these to be in separate sections (in chronological order within each section) so that they appear in groups before or after the generality of documents.
Expert Reports. Reports by tribunal-approved experts such as (depending what the case is about) engineers or surveyors.
Witness Statements. Generally the witness statements of each side will be arranged in separate groups. If there are two or more witness statements from the same witness to be included in the trial bundle they should appear one after the other, the earlier one first. If a witness statement is accompanied by exhibits (e.g. if there are paragraphs in a witness statement saying "I refer to a photograph marked Exhibit JJS2 which I took...") only the witness statement itself is in this section - the exhibits themselves will be in the documentary evidence section.
Below is an example of a trial bundle index
You can create a trial bundle manually but don't! It is much easier using a a web-based service such as CaseLines. If you are using Caselines already to manage the documents in the litigation process, then most if not all of the documents needed in the trial bundle will be already in Caselines so it is a matter of making a new Trial Bundle "case" and copying documents within Caselines into it. If you have not, up to now, used Caselines to store the documents, you first need to load each document into Caselines giving it a name which is suitable for use in a bundle Index. Once all the documents are in the Trial Bundle "case" in Caselines, 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 look something like the above) and each section of the bundle.
You should ensure that the Tabbed option is ticked for all documents so that in the generated PDFs the first page of every document is always printed on the right hand side so that the bundle can be printed double-sided.
Note: it is also possible to produce a trial bundle using www.sejda.com though you need to be quite an experienced computer user to do it this way.
The Trial Bundle must contain all evidence which the tribunal will be asked to consider during the trial. Some people think that they can bring along to the trial lots of other documentary evidence as well but this idea is quite wrong. All documentary evidence must be in the trial bundle. If you discover at the last minute that something has been accidentally missed out of the trial bundle then the tribunal might give you special permission to use it but equally the tribunal might refuse or there might be a costs penalty so make sure every piece of evidence you want the tribunal to look at is in the trial bundle.
There are some documents which may be prepared by barristers to supplement their oral argument about the facts or the law which might be loose and not be included in the trial bundle such as Skeleton Arguments, Chronologies, Case Summaries, Lists of Issues, and legal authorities (statutes and decided cases which establish legal precedents). Also any "without prejudice except as to costs" letters should not be in the trial bundle because the judge must not see these until after the judge has given judgement (decided who wins). In addition there may be schedules showing the legal costs (e.g. barrister fees and tribunal fees) with supporting invoices attached, which a party has incurred and which the judge does not need to consider until, after judgment, a party (usually the winner) applies for a costs order - these may be just stapled or a party may produce a Costs Bundle. But none of these documents are evidence for the trial. Any documents which are evidence relied on by a party to prove its case must be in the trial bundle.
Normally the tribunal rules, or directions given by the tribunal, will require the parties to co-operate in the production of the trial bundle. One party (normally the party starting the litigation) has the responsibility for actually producing and delivering the bundle in the required number of copies, but that party should ask the other party, in good time, what documents they wish to be included, and the other party should respond in good time.
The general rule is that any document which either side wishes to be included in the bundle should be included, neither side having a veto. However there are some circumstances in which a party may object to the inclusion of a document which the other party wishes to be included. For example "without prejudice except as to costs" offers made by one party, but not accepted by the other, should not be included because the whole purpose of the "without prejudice" offer system, which is sanctioned by court/tribunal rules, is that parties should be encouraged to make settlement offers without being concerned that the judge hearing the case will see the "without prejudice" offer before the judge has decided who has won. It is unlikely that there will be a dispute about the principle that "without prejudice" offer documents should not be included, but sometimes there can be a dispute about whether a particular document really is a "without prejudice" offer. If there is a genuine dispute of this nature about a document, normally the parties agree not to initially include the disputed document but to take sufficient (hole punched) copies to the trial so that they can be inserted or not depending on the judge's ruling. Therefore any such genuinely disputed document would not be included in the Trial Bundle.
Another circumstance where a dispute can arise is where a party wishes to include a document which has not previously been "disclosed". Normally the tribunal directs the parties, at an early stage in the litigation process, to produce disclosure lists, listing all the documents they have which are relevant, and the rules provide that a party cannot subsequently insist on a document being included in a trial bundle unless it is a document which appears on either party's disclosure list. Permission must be sought from the tribunal to include such a document if the other side objects.
Generally tribunals require trial bundles to only contain relevant documents because large numbers of irrelevant documents waste the tribunal's time. Sometimes the parties disagree about whether documents are relevant. If the dispute is only about a few documents and there is no other reason to object to their inclusion, then it is normally agreed that they will be included because a dispute about just a few documents would take more of the tribunal's time to resolve than simply including them. However if the party producing the bundles believes that a large number of documents, which the other side is insisting should be included, are completely irrelevant, the bundle-producing party may feel obliged, in order not to waste the tribunal's time, to refuse to include them. Sometimes what happens is that the bundle-producing party does include the documents but makes clear in a letter/email to the other party that they are doing so under protest. The purpose of such an "under protest" letter/email is to protect the bundle-producing party's position if the tribunal, at the trial, makes a criticism of the fact that a large number of irrelevant documents have been included in the bundle, and requires to know which party was responsible so that an appropriate sanction (such as an adverse costs order) can be made. Sometimes logistics plays a part in the bundle-producing party's decision whether to include documents - for example if a large number of documents have been requested very late in the day, and the bundle-producing party believes them to be irrelevant anyway, the bundle-producing party may be more likely to refuse to include them.
If the bundle-producing party refuses to include documents which the other party insists should be included then the other party may have to produce their own supplementary bundle, in the required number of copies, to be used by the tribunal alongside the main trial bundle. This is, however, very much a second best because documents should be arranged in logical sequence in a trial bundle and having some documents in the trial bundle and other documents in a supplementary bundle means the sequence of documents may not be as easy to follow. Tribunals expect the parties, in good faith, to try to resolve any differences so that no supplementary bundle is needed.
It is important, therefore, that the bundle-producing party should send to the other party, in good time before the trial at which the bundle will be used, a draft copy of the trial bundle PDF so that the contents can be agreed. Because the PDF will be large it is usually sent using a file transfer system rather than by email.
The bundle-producing party could produce, as a first step, a bundle containing only the documents the bundle-producing party party requires in the bundle and invite the other party to specify what further documents they require to be included. However usually the bundle-producing party will have a good idea what documents the other party is likely to require and it is usually easier, logistically, to initially include all the documents the bundle-producing party requires plus all the documents the bundle-producing party thinks the other party is likely to require, and the other party can then be requested to confirm whether there are any further documents they require to be included (if there is a large run of documents which the bundle-producing party has included only because of an assumption that the other party is likely to require them, then the other party can be asked, at the same time, to confirm that they do indeed require them).
It is important to avoid unnecessary duplication of documents.
Once agreement is reached, the final trial bundle can be produced. It is vitally important that everyone - the tribunal, the parties, and their barristers - have identical bundles with identically numbered pages, so, to avoid any confusion, it is good practice, when initially making available to the other side the draft bundle in PDF form, to emphasise that it is a draft and that the page numbers of documents in the final bundle will be, or may be different.
First - plan the arrangement of sections within volumes
Although it is referred to as "a bundle", the Trial Bundle may, of course, consist of a number of lever arch files/ring binders if necessary because of the number of pages in it and because there may be some pages larger than A4 size which require a separate larger binder. In fact, even if the bundle is less than 300 A4 pages in total, and so could physically be accommodated in a single volume, it is generally desirable that more than one volume should be used so that the Witness Statements are in a separate volume.This is so that when a witness is giving evidence, and a page from their witness statement is open, the documents they are asked questions about will be in another volume and everyone can have both pages open simultaneously.
For example a Trial Bundle could be arranged in lever arch files and ring binders like this:
Volume 1 (A4 lever arch file)
Index (9 sheets - A4)
Statements of Case (41 sheets - A4)
Orders (19 sheets - A4)
Photographs (30 sheets - A4)
Documentary Evidence (190 sheets - A4 and some A3 sheets folded to A4 size)
Volume 2 (A4 lever arch file)
Documentary Evidence (254 sheets - A4 and some A3 sheets folded to A4 size)
Volume 3 (A3 ring binder)
Expert Reports which contain A4, A3 and some A2 pages (43 sheets)
Volume 4 (A4 ring binder)
Witness statements (90 sheets - A4)
Doing the printing and assembling
1. If you have a suitable fast colour printer which can print double-sided you might choose to print out the bundle PDF 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.
2. When the bundle pages have been printed out, hole punch them and file them in one or more lever arch file/ring binders. As explained above it is good practice for the witness statements to always be in a separate volume from the rest of the documents (so that a page of a witness statement, and a document referred to on that page, can be open simultaneously).
3. The very first page of the Index PDF may be a title page giving the name and number of the case. The first page filed should always be the first page of the Index (i.e. the second page of the PDF if the first page of the PDF is a title page) so that the index can be seen immediately on opening the file without having to turn over a page which merely contains the title of the case. The initial page containing only the title is intended to be stuck on the outside of the front cover of the first volume but in fact it is better to write your own sticky label to put on the front of the first and subsequent volumes as explained below, rather than use the title page.
4. Consider inserting numbered dividers. Unless the tribunal rules, or the specific directions given by the tribunal, require you to do this, you do not have to, but generally it will assist the tribunal if you can do this. See here for more information about inserting numbered dividers.
5. For each volume write the number of the volume (in large writing - 72 point), a brief indication of the contents of the volume (in medium writing), and the name and number of the case (in small writing) on a label affixed to the outside spine. For example:
John Smith v Geoff Jones
Case No 1AB123456
6. A label with the volume number and brief indication of contents should be stuck on the front of the volume:
7. A further label with the same information should also be stuck on to the front inside cover of each volume at the top left, in such a way that it can be seen even when the pages of the volume are open.
8. If a volume contains more than one section then you should insert a cardboard tab at the front of each section. For example if the first volume contains three sections Statements of Case, Orders, and Photographs, the label on the volume should say "Statements of Case, Orders and Photos", and a cardboard tab with "Statements of Case" written on it should be inserted before the Statements of Case, a cardboard tab with "Orders" written on it should be inserted before the "Orders" and a cardboard tab with "Photos" written on it should be inserted before the Photographs.
9. Repeat steps 1 to 8 above to produce several identical copies of the bundle. Unless the tribunal rules or specific directions given by the tribunal, require more (e.g. if the tribunal consists of more than one person), you generally need two copies for the tribunal (one for the judge and one for the witness box) and two copies for each party (one for the party themselves and one for the party's barrister).
10. Generally you will be sending copies of the bundle by post to the other party in advance of the hearing. The deadline for delivering the tribunal's copies to the tribunal office depends on the particular tribunal rules and any specific directions given by the tribunal. Many tribunal offices have limited storage space and consequently the tribunal's directions may specify a maximum as well as a minimum time for delivery to the tribunal office - e.g. "The Applicant shall lodge the trial bundle not more than 7 days before, and not less than 3 days before, the trial date". Sometimes, again because of lack of storage space, the tribunal's directions will require only one copy of the bundle to be lodged in advance with the second copy being brought along on the first day of the trial.
11. When sending copies of the bundle by post, you should ensure that they are well padded so that the metal posts of the lever arch files are not bent during handling in the post. Once the metal post in a lever arch file is bent out of position, it is impossible to bend it back into exactly the right position so that the two posts exactly meet, with the annoying result that every time the judge using the lever arch file turns over a page, the page catches on the point where the metal posts (almost) join.
You should take great care to ensure that the bundle is correct and complete before copies are sent out. If, despite best endeavours, you discover, after some or all of the copies of the bundle have been sent out, that a document, or a page of a document, has been missed out, it is essential that steps are taken to insert the additional document(s)/page(s) in the same position in all copies of the bundle, including those already sent out, because the copies of the bundle used by the judge and by the parties and their barristers must be absolutely identical. It is also essential that the new documents/pages are page-numbered in a way which does not disturb the existing page numbering of the bundle. (This is because each party’s barrister, and possibly also the judge, may already have started to prepare for the trial, noting down the page numbers of documents. It would cause untold confusion if the page numbers change.) So you should use sub-numbering for the additional pages to be inserted. For example, if the extra document to be inserted is a two page purchase order dated just after (and therefore to be inserted immediately after) a three page quotation which is on pages 136, 137 and 138, then the first page of the purchase order would be numbered 138a and the second page would be numbered 138b.
If an entire document or documents have been missed out see here for sub-numbering instructions if you are using CaseLines. If just one or two pages of a document have been missed out see here for instructions if you are using Caselines.
Note: If you are not using Caselines here is another way of inserting documents without disturbing page numbering.
If you discover, after some or all of the copies of the bundle have been sent out, that it contains a document which it should not, then you need to take steps to remove it (including any reference to it in the index) from all copies of the bundle, including those already sent out, because the copies of the bundle used by the judge and by the parties and their barristers must be absolutely identical. It is also essential that the removal of the document should be done in such a way that it does not disturb the existing page numbering of the bundle. (This is because each party’s barrister, and possibly also the judge, may already have started to prepare for the hearing, noting down the page numbers of documents. It would cause untold confusion if the page numbers change.)
Of course you only need to remove a document if there is actually some problem in it remaining in the bundle. If it is just a case of the document not needing to be in the bundle then it may cause less disruption simply to leave it in. As a general rule bundles should not contain unnecessary documents because it can waste the tribunal's time but just one unnecessary document is not generally a problem.
Assuming that the document does need to be removed - e.g. if it is a without prejudice offer that the judge should not see - how to remove it cleanly, if you are using Caselines, is explained here.
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 November 2016. Disclaimer