DCS - Organising Documents for an Appeal or Review - John Antell

DCS - Organising Documents for an Appeal or Review

Everything you send or receive during the course of the appeal or review litigation, including both correspondence about the case and formal litigation documents, will be automatically stored in your email system, but you will find that, as litigation proceeds over many months, you will end up with a large number of emails in your email system, so, whenever you receive, or send out, a key formal litigation document, you should store a copy of it in the appropriate location in Caselines Digital Case System (DCS), as described below, so that you can easily locate these important documents when needed as the case proceeds, and not have to search for them in your email system.

In addition to what is created by the appeal or review litigation process itself (i.e. formal litigation documents and correspondence about the case), you will have documents from the court/tribunal/administrative body which is being appealed from/reviewed. If you used DCS before, for the matter now being appealed/reviewed, you will still have those DCS cases and the documents in them. If you did not use DCS before then selected documents from the court/tribunal case or administrative decision below would be stored in a DCS case now.

A word about terminology. The whole of the litigation is referred to as a "case" and the court/tribunal will allocate a case number. But the DCS system also uses the word "case" to refer to a collection of documents (from which, if necessary, a "bundle" can easily be produced). So there will be several DCS cases for your single court/tribunal case.

Storing the above documents in DCS in the way described not only allows you to find key important documents quickly.

the DCS system is where I will look, from now on once you have set it up, for certain key documents as the litigation proceeds and you ask me to carry out work at each stage. It would not be cost-effective for me to search through your cloud storage, so don't give me access to your cloud storage, but instead you should put copies of the key documents, in DCS as explained below.

The main DCS case will be called Documents for Appeal if yours is an appeal case, or Documents for Judicial Review (or Documents for Statutory Review) if the case is a judicial/statutory review. For brevity I refer to this DCS case below as Smith v Jones - Documents for Appeal but the name you actually give it should be whatever name name is appropriate for the names of the parties and whether it is an appeal or a review case. You will be granting me access to the DCS Documents for Appeal case, as described below, so that I can use it for reference each time you ask me to do the next piece of work as the appeal/review proceeds. I do not need access to your own cloud storage - indeed it it best if you do not grant me access to your own cloud storage as, because of the way the human mind works, if I have access to your cloud storage you may start to think - perhaps subconsciously - that when doing each piece of work you ask me to do, I will be considering everything contained in your cloud storage when, in fact, it is only the documents in the DCS Documents for Appeal case which I will be considering (together with any email message and attachments you provide to me at the point where you ask me to carry out the next piece of work in your case). Ensuring that I do not have access to your cloud storage will remind you that it is your responsibility to ensure that the DCS Documents for Appeal case is up to date with the key documents it is designed to hold (but no other documents).

Organising documents in DCS

In the DCS system, groups of documents are organised into what are called cases and, within each case, documents can be further divided into sections. As shown below, you will initially need to create one DCS case, and you may need, later on, to create further cases to produce bundles for the final hearing and for any other hearings. How to load documents is explained here.

The documents to be stored in the DCS Documents for Appeal case are shown in the table below. As well as making sure you do store the key formal litigation documents in the correct sections in the Documents for Appeal case as soon as you send or receive them, it is equally important that you do not store, in a section, a document which does not belong there. If, for example, you were to store every piece of correspondence sent or received, into the sections of the Documents for Appeal case intended for formal litigation documents, “just in case”, that would defeat the object because the important documents would be lost among the mass of more routine correspondence.

Smith v Jones - Documents for Appeal case

Name of Section	Order by	What documents should be stored in it
Claim or Appeal Documents	Date	These are the documents, drafted by each side's barrister, which set out what each party contends for. They may be named, Notice of Appeal, Appellant's Notice, Response, Claim Form, etc. Claim Form 30 Jan 16
Questionnaires	Date	Questionnaires and any documents filed with them. Questionnaire – Claimant 25 Feb 16 Questionnaire – Defendant 26 Feb 16
Orders	Date	Orders made by, and letters giving directions from, the court/tribunal (e.g. about how the parties are to prepare for the final hearing) and notices issued by the court or tribunal such as a Notice of Hearing - e.g. Order 27 Feb 16
Orders below		If this is an appeal from a judgment at the end of a trial then the judgment/reasons for decision and the order made below are stored here. If this is an appeal from, or review of, the decision of an administrative body then the decision of the administrative body is stored here. If there have been several levels of decision, for example if the current case is an appeal from the decision of a planning inspector made on appeal from a local authority, or an appeal from the decision of a court or tribunal which was itself made on appeal from a court/tribunal below it, then there would be separate sections for each level.
Other Relevant Documents		Documents relevant to the grounds of appeal/ grounds for review such as documents or reports considered by the court/tribunal/administrative body below.

Important Note It is important that you do not store, in the sections shown above, documents which do not belong there. If, for example, you were to store every piece of correspondence sent or received, into the sections of the Documents for Appeal case intended for formal litigation documents, “just in case”, that would defeat the object because the important documents would be lost among the mass of more routine correspondence. You may need, when the times comes, to create a bundle containing documents directly relating to a particular forthcoming hearing but this should be done by creating a new and separate DCS case, to contain the documents required for that hearing (some of which may be copied from the above sections), not by adding documents to the above sections which do not belong there.

Extra DCS Cases for Hearing Bundles

In some cases the Documents for Appeal DCS case can be used to generate the bundle needed for the main hearing (by, if necessary, unticking the Included box for documents not needed in the Bundle) but in other cases it may be necessary to create one or more new separate DCS cases. One example where this would be necessary would be whether the court's/tribunal's directions require two bundles such as a core bundle and a supplementary bundle. Hearing bundles produced by you using DCS will be produced in PDF form before they are printed and you should save each bundle PDF (on your computer or in cloud storage). Although, once used for a hearing, a case bundle should be kept intact and unchanged in DCS, there is always the possibility of it being changed by mistake (you might amend it by mistake when you intended to update one of the general reference cases for example), so you should retain the bundle PDF as it was when you printed it out and created the hardcopy bundle, so that for each hearing you have an exact copy of what the hardcopy bundle contained.

If it is the other side, rather than you, which has been directed to assemble the bundle for the main hearing, you will need to tell the other side what documents you require to be included in it and the above DCS case is used for that purpose.

Smith v Jones - Appeal Costs Arguments case

This case is for documents which might be used in arguments about costs at the end of a hearing once the judge has given judgment.

Section Title	Section Letter	Order Documents by	What documents should be stored in the section
Open Offers	XA	Date	Open offers (i.e. offers from one party to the other which are not Part 36 offers, without prejudice offers, without prejudice except as to costs offers, nor Calderbank offers) and any open responses (e.g. explaining why an offer is not accepted, requesting further information, etc) are stored here.
Costs Orders	XB	Date	This section contains all orders a 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).
Interim costs Schedules	XC	Date	At 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. These should be stored here.
Other documents relevant to costs	XD	Date	This section is not for documents which may be useful for assessment of costs (deciding how much a party ordered to pay costs should pay) but for documents which may be relevant to arguments about who should pay costs or whether they should pay the costs (whatever they are after assessment) for the whole period of the litigation or for a particular part of the litigation. An example of documents stored here would be correspondence pointing out that a party's conduct in the litigation process itself has unnecessarily increased costs.
Without Prejudice offers	WOP	Date	Any Part 36 offers, without prejudice except as to costs offers, and Calderbank offers, and any responses (e.g. explaining why an offer is not accepted, requesting further information, etc) are stored here. If one party proposes mediation but mediation does not take place then the letter proposing mediation, and any reply declining mediation, should be stored here. Letter Defendant to Claimant 28 Feb 18 NB Offers and responses which are unqualifiedly without prejudice (i.e. without prejudice rather than without prejudice except as to costs) are not stored here because these cannot be shown to the judge even after judgment. Initial letters proposing/or refusing mediation are normally without prejudice except as to costs and so would be stored here, but any documents produced during, or in preparation for, mediation itself will be unqualifiedly without prejudice (even if they do not explicitly say so) and are not stored here.

As well as the Master Bundle, a sub-bundle named OPEN should be created containing all the documents for all sections except the WOP section. The Bundle Settings for both Master bundle and OPEN sub-bundle should be set as follows

Page Number Position in the Bundle - Right

Page Stamping Colour - Red

Section Numbering Restarts in the Bundle - ticked

Display Document Dates in the Index - ticked

Display Section Numbers in the Index - ticked

Include Front Page and Index in Complete Bundle - ticked

Include Front Pages and Indexes in each Section - unticked

A hardcopy bundle is then created as follows:

1. Print out the entire OPEN sub-bundle

2. Print just the WOP section from the Master Bundle.

3. File the pages of the WOP section after all the pages printed from the OPEN sub-bundle

The above procedure results in a bundle having a main index at the front which lists documents in all sections except the WOP section. The purpose in doing this is as follows. The general idea of a Costs Arguments bundle is that it should not need to be used until after the judge has given judgment (decided who wins) but occasionally some documents in it may need to be shown to the judge before judgment. However the documents in the WOP section must not be seen by the judge until after judgment. By excluding the documents in the WOP section from the index it is possible, if necessary, to remove the WOP documents (each one of which will be identified by the letters WOP in red as part of the page number on the bottom right) and for the remainder of the bundle - including the main index - to be seen by the judge.

Important Note: The above DCS case is not for documents which may be useful for assessment of costs (deciding how much a party ordered to pay costs should pay) but for documents which may be relevant to arguments about who should pay costs or whether they should pay the costs (whatever they are after assessment) for the whole period of the litigation or for a particular part of the litigation. An example of documents stored here would be correspondence pointing out that a party's conduct in the litigation process itself has unnecessarily increased costs. Interim costs schedules (if there are any) are included in the case only for the purpose of giving a rough assessment of the proportion of costs incurred at different stages of the litigation process (not for the purposes of assessment of costs).

Folders on your main Windows computer

Smith v Jones - PDF copies of Bundles

As explained above, whenever there is a court hearing a hearing bundle will need to be produced, either by you or by the other side.

If the hearing bundle is produced by you using DCS it will be produced in PDF form before it is printed and you should save the bundle PDF in this folder. Although, once used for a hearing, a bundle should be kept intact and unchanged within DCS, there is always the possibility of it being changed by mistake (and after the end of the case it may be kept within DCS only for a limited period and not for the full 7 years which is the normal period you should keep things for) so you should retain in this folder on your computer the bundle PDF as it was when you printed it out and created the hardcopy bundle, so that for each hearing you have an exact PDF copy of what the hardcopy bundle contained.

If the other side has produced the hearing bundle and sent it to you in hardcopy form, you could ask them if they can also send you a PDF copy which you can then save in this computer folder: they will probably be able to do this easily because most people create hearing bundles in PDF form and print a hardcopy from that. It is good practice to always keep the hardcopy anyway just in case there is any difference which you might not immediately notice (e.g. a page may have been inserted as an afterthought in the hardcopy without being in the PDF).

Most courts require hearing bundles to be produce for every hearing - even short hearings - but occasionally a court may deal with a matter without there being a formal hearing bundle. For example there may just be two witness statements and a few exhibits "loose". In this case you should save PDF copies of these in this folder in place of a formal bundle.

Smith v Jones - PDF copies of other DCS cases

As explained above, whilst some DCS cases are used to create a bundle for a specific hearing, there are other DCS cases which are used for other purposes and, at the end of the litigation, PDF copies of these other DCS cases (i.e. the PDF "bundle" which DCS produces for the case - set the bundle options so that there are no page numbers in the "bundle") should be saved in this folder on your Windows computer.

Organising Your Email Folders

Virtually all correspondence you send or receive in the course of litigation will be automatically stored in your email system. This even includes much correspondence received by post because some of that you will be emailing that to me to ask me to advise. Likewise you will be emailing to me PDF copies of any signed letters you send out by post which you have asked me to draft. Because searchable email folders are so convenient, people sometimes, even if they have no other reason to send by email, scan things in as PDFs and email them to themselves so that they can store them in a convenient email folder. For example if you receive an invoice for a disbursement by post, you could scan it in, email it to yourself, and store it in the CostsDisbursementsEvidence folder (as well as keeping the paper original).

I would suggest that you have a high-level folder for emails relating to the case (named - e.g. Smith v Jones) to keep them separate from other emails, such as your personal emails, and that below that high-level folder you have at least the following sub-folders.

Service	Any emails from me advising how to validly file and serve formal documents. Also any correspondence sent by you or received by you which notifies an address for service or a change of address for service of formal documents (including any correspondence notifying a change of solicitor representing the other party). Any notification by the court of a change of address of the court centre dealing with the case.
ServiceEvidence	Evidence of how and when you served particular documents on parties. This includes both documents provided to you by others - such as a certificate of posting provided by the Post Office - and Certificates of Service which you complete and sign.

Settlement	Correspondence between parties which aims to achieve a settlement.
CostsStatements	Costs budgets, estimates of costs, and statements of costs filed by either party as the case proceeds. Also Disclosure Reports (giving estimate of costs of disclosure of documents).
CostsDisbursementsEvidence	Supporting evidence of disbursements in the case. This may include invoices from barristers, mediators and from any commercial document scanning or printing service you use, and for court fees.
CostsOther	Most people, in order to increase the likelihood of the trial judge carrying out a (fast) summary assessment of costs at the end of the trial will put forward a Statement of Costs for Summary Assessment at the trial which just includes disbursements (on the basis that if it includes small items as well the judge may be more inclined to order the long and costly process of Detailed Assessment for which a specialist Costs Lawyer would need to be engaged). However if, for whatever reason, Detailed Assessment is ordered normally information about all expenditure (not just Disbusements) is provided to the Costs Lawyer and to cater for this possibility all emails relevant to expenditure, however small, can be stored here.
CostsBehaviour	Any correspondence in which one party accuses the other of unreasonable litigation behaviour. Most cases are about behaviour which could be described as unreasonable but if the way a party behaves in the litigation itself is unreasonable (e.g. missing deadlines or bombarding the other party with long repetitive emails) relevant emails would be stored here as they may be relevant to the order the court eventually makes about who should pay the costs of the litigation itself.

Paper Files you should keep

The original signed copies of court/tribunal documents which have been filed/served (e.g. Claim Form or Appellant's Notice) should be kept in a paper file in case the court/tribunal should require them to be produced.

Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else.

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 July 2018 Disclaimer

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