When an appeal is being heard in a court or tribunal it will normally be an appeal by way of review rather than a rehearing.
In an appeal by way of rehearing the appeal court or tribunal will conduct a full trial afresh - hearing all the witnesses and considering all the documents. It will not need to consider in detail the decision being appealed against - it simply looks at everything afresh. Where the original decision was made by a government agency, the first appeal to a tribunal would normally be a rehearing because that is the first time that he matter is being considered by an independent body. For an appeal by way of rehearing, the bundle of documents used by the court or tribunal would generally be in the form of a trial bundle even though it might be called an "appeal bundle". See here for how to create a court trial bundle or here for creating a tribunal trial bundle.
In an appeal from a court or tribunal to a higher court or tribunal, the appeal will normally be by way of review. This means that the appeal court/tribunal will not be looking at everything again but will only be looking at certain specific aspects of the decision appealed against - those aspects which the party appealing identifies as grounds of appeal. This article describes how to produce an Appeal Bundle for an appeal which is to be by way of review.
Review is also the name of a procedure whereby the court decides whether a decision by an administrative body (such as a planning inspector) is valid. This is a slightly different meaning of "review" but the bundle, which the court will refer to, is similarly constructed whether the hearing is a review of an administrative decision or whether it is an appeal by way of review.
The Appeal/Review Bundle is normally produced by the party appealing or applying for the review. In the Bundle every page has a page number and the judge and each party at the hearing have identical copies of the Bundle so that the parties' barristers and the judge can easily and quickly refer to the same page in their copies of the Bundle.
As well as being paginated - having each page numbered consecutively - the 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 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 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 Bundle, giving at least 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 it is still 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 the index.
Often the rules of the particular court/tribunal will state what sections there should be in the Bundle and often indicate in what order. For example there may be the following sections following the index:-
Appeal/Review Documents - this will include documents such as the Notice of Appeal, Respondent's Notice, etc.
Decisions and Orders of the court/tribunal being appealed from or administrative body subject to review - this will include documents such as the order under appeal, a copy of the judgment/decision - i.e. the reasons given by the judge below for their decision, and a copy of any order from the judge below granting or refusing permission to appeal (if the order being appealed from was itself an order made on appeal, then there will be a further section for the court below that).
Other necessary documents - exactly what documents should be included in this section depends very much on the particular case and the grounds of appeal/review. Generally the court/tribunal will not want every document which was before the court or tribunal below to be included but only those documents necessary for this particular appeal/review. It might include statements of case, other orders made in the case, a chronology of relevant events, witness statements and other documents.
Authorities - e.g. Acts of Parliament and reports of decided court cases which establish a particular legal rule which is relevant to the appeal or review.
You could create a Bundle manually by photocopying the documents to be included in the Bundle, arranging them in order, page-numbering them using a black ball point pen, typing up and printing the Index, and then photocopying the result as many times as necessary to produce the required number of copies of the Bundle. However it is much easier to use a computer service to create the Bundle automatically and the remainder of this article assumes that you will be creating an Bundle automatically.
The basic method involves starting with the documents to be included in the bundle, in PDF form with appropriate descriptive names (which is suitable for use in an Index) such as:-
The copies of the documents which were before the lower court or tribunal should be taken from the bundle which was used before that court/tribunal, complete with page numbers from that bundle. This is because the judgment of the court/tribunal below may well refer to documents by bundle page number so the original page numbers need to be visible (in addition to the different - and more prominent - page numbers imposed by the process of producing the bundle for the current court/tribunal).
You then load the PDFs into a commercial web-based bundle generating service. Specifically CaseLines is recommended because it allows you to give online access (read-only or update as desired) to a barrister you instruct to draft documents for the appeal/review and/or to the other side. This is important in appeals because the Bundle generally has to be created early on in the appeal process with new documents being inserted into it (using sub-numbering so that existing page numbering is not disturbed) in the months leading up to the hearing.
You should generate PDFs which can be used for double sided printing. To do this using Caselines 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.
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.
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 a lever arch file (or ring binder if there are not many pages).
3. The very first page of the Index PDF is a title page giving the name and number of the case and the title of the bundle (e.g. Appeal Bundle, Review Bundle) in tramlines. 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 volume, though you can write your own sticky label to put on the front of the volume, containing the same information, if that is easier, rather than use the title page. As well as sticking the title page to the front (or using a sticky label on the front) you should put a sticky label on the outside spine with the case number and case name in large writing.
4. Insert cardboard tabs in front of each section and write on the tab the name of the section (you can see the section name in the index).
5. Repeat steps 1 to 4 above to produce several identical copies of the bundle. Unless the court/tribunal rules or specific directions given by the court/tribunal, require more, you generally need one copy for each judge on the panel hearing the appeal/review, and two copies for each party (one for the party themselves and one for the party's barrister).
6. The court/tribunal rules or orders will specify when copies of the bundle must be delivered to the court/tribunal office and the other parties. When sending lever arch files 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.
Some courts/tribunals require you to deliver the Bundle to the court/tribunal office early on in the process and to add further documents before the appeal hearing. Even in courts/tribunals which do not require the Bundle to be lodged until later on, it is still possible that an additional document might need to be inserted after the Bundle has been delivered. When inserting pages after the Bundle has been sent 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, because the copies of the Bundle used by the judges 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 judges, 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.)
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.
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 court 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.
contact me for advice.
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.
This page was lasted updated in February 2017. Disclaimer