Organising documents for eventual possible use in a Costs Bundle


Introduction

When there is a trial, or the hearing of an application or appeal, in a civil court or tribunal, the court/tribunal 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. 

 
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”.

Unlike a Trial Bundle, Application Bundle or Appeal Bundle which is sent to the court/tribunal in advance of the hearing, the parties each take a Costs Bundle 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.

So it is convenient to keep documents which might need to go into a Costs Bundle in a separate Bundledocs bundle from the main Bundledocs bundle, organised as shown below.

Note that the organisation of documents shown below 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 litigationInterim costs schedules are included below 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).


  
Section Title  Order Documents by What documents should be stored in the section

 Open Offers

 
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 



 

 
Date
 
 This section contains all orders the court or 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

 
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

 
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

 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.  



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This page was lasted updated in May 2020 Disclaimer