When there is a trial in a civil court or tribunal the judge will refer to documents arranged in a Trial Bundle which is produced by one of the parties - usually the party which started 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 will be a further 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 Trial Bundle in the witness box, the parties and the judge can easily and quickly refer to the same page in their bundles.
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, not merely every section, 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.
Generally speaking the Trial Bundle will not contain everything which has passed between the parties because a lot of documents will not be needed. It might be thought that it would be a good idea to include everything just in case it is needed but that would mean that trials took longer than they needed to and that would cause a backlog of cases to build up because the number of judges is limited. So generally the courts and tribunals require Trial Bundles only to contain what is needed for the trial itself (there might be extra documents which a party wants to refer the judge to after judgment at the end of the trial when the question of costs is considered but documents relevant only to costs would normally be in a separate Costs Bundle produced by each party which wants to produce one, not in the main Trial Bundle). This means that each party has to select, out of all the documents, those documents which they require to be included in the Trial Bundle.
Normally the court or tribunal rules, or orders, will require one party, normally the party bringing the proceedings, to produce and deliver the Trial 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. That is what should happen but sometimes, regrettably, the party responsible for producing the Trial Bundle, fails to adequately discharge their duty. This can be because of lack of understanding or experience, or lack of time. Sometimes it is down to carelessness. Occasionally the party producing the bundle is indulging in gamesmanship, seeking to exclude from the Trial Bundle documents the other party wishes to have included. Because someone seeking to do this may seek to disguise their intentions it is not always easy to distinguish between obstructiveness, laziness and genuine mistake. Sometimes it is actually a combination - a colour photograph is accidentally produced in black and white but then a decision is taken by the bundle-producing party not to correct it because it is a photograph which helps the other party's case. The paragraphs below explain in a little more detail what potentially can go wrong and how to deal with problems so that the Trial Bundle produced by the bundle-producing party includes all the documents you require it to.
Before the use of computers became widespread, Trial Bundles were created using typewriters, biros (for page numbering) and photocopiers. The typewriter/biro/photocopier method is a laborious process so typically before this laborious process started in earnest, the bundle-producing party would type up a draft index of documents and FAX it to the other party for agreement. The other party would list any further documents they required and the bundle-producing party would type up an amended draft index or more often (because typing up a new index would be time-consuming - typewriters did not have the ability to insert text) would send a FAX saying how the draft index would be modified (e.g. "we will add the document you mention in paragraph 15 of your letter to... etc. etc... The documents we described as.... was not, but rather... so we amend this description... This also means that... etc. etc."). When the final index was agreed, the laborious process of producing the copies of the bundle, using a pen to number the pages and a photocopier to create the required number of copies, would begin.
These days computers are used, not actual typewriters, but it is surprising how many solicitors firms still use the same basic manual procedure rather than using a system such as Caselines which automatically generates an indexed and paginated bundle in PDF form from the individual document PDFs. Any solicitor's firm which does a significant amount of litigation will use a system such as Caselines because most of the higher courts require bundles in PDF form (as well as hardcopy) with PDF bookmarks, but there are solicitor's firms who mainly concentrate of non-contentious work (conveyancing, Wills, etc.) and only do a small amount of litigation work solely in the County Court (the County Court does not yet require bundles in PDF form). If your opponent who is producing the bundle has no solicitor he will probably use a system such as Caselines, but many solicitor's firms who only do a small amount of litigation, and only in the lower courts, will still use the manual method.
If a system such as Caselines is being used there is no reason why the other side should not send you a full draft bundle, but if it is being done manually that would be impractical so you may well find that the bundle-producing party, or rather their solicitors, sends you a draft index they have typed up, rather than a full draft bundle in PDF Form generated by software. There are a number of potential pitfalls in trying to agree the contents of the bundle just by reference to a draft index in this way. The description of a document in the index may not be exact and you may agree (or at least not object to) the index only to discover, when you receive the complete bundle some days later, that the document actually included is not the one you expected and that a document you expected to be included has been omitted. Another potential problem is that, because the index has been typed up manually (rather than generated using PDF indexing software) often it will not list all documents individualy but, to save typing time, will list some documents as a group, and you cannot be 100% sure precisely what set of documents that group description is intended to encompass.
You can send queries but the bundle-producing party may use that as a pretext for an over-complicated reply ("snow job") and try to get you, because the correspondence gets so complicated, into a position in which you go along with what they have said they have done/will do without realising that it results in some document you would have wanted to be included being left out. Even if there is no deliberate intention by the bundle-producing party to leave documents out that can easily happen by mistake if the correspondence gets complicated.
Generally the best strategy for dealing with this potential problem is to have, at the outset, even before you are asked, your own complete list of documents you require to be included in the Trial Bundle. Then, no matter how complicated the correspondence may become, you can always conclude every reply you make with words such as
Once you receive the Trial Bundle you may find that some documents are not clearly reproduced. Some colour photographs or colour plans may be in black and white and some pages may be illegible. You can alert the bundle-producing party and they can produce replacement pages and arrange for them to be inserted in all copies of the bundle including in copies which may already have been sent to the court/tribunal, but they may fail to do this (particularly if their production of illegible pages was deliberate!).
Here are some tips on dealing with problems such as those described above.
1. Be prepared for the other side to query whether you are entitled to include a document. If the court/tribunal has previously made a disclosure of documents order then normally you cannot (without special permission from the court/tribunal) insist on a document being included in the Trial Bundle if the document has not been previously disclosed, so have all the relevant correspondence to hand to prove what you have disclosed and when. You should also bring this correspondence to the trial in case there are last-minute queries or disputes about included documents.
2. Often the court/tribunal order will only require the bundle-producing party to deliver the bundle to the court/tribunal 7 days before the trial. This is often because the court/tribunal has limited storage space for bundles. However there is no reason why the bundle cannot be produced earlier, even if it is not delivered to the court/tribunal office until 7 days before the trial, so ask the bundle-producing party in advance to plan to send you your copy of the bundle 14 days before the trial. If you get the bundle 14 days in advance you have more time to deal with any problems. You cannot force the other party to send you the Trial Bundle earlier than the court/tribunal order requires but if you ask politely in good time a reasonable party will oblige. If they refuse that gives you some indication of the kind of person you are dealing with and may help you judge whether any defects in the bundle are likely to be accidental or deliberate and how long you should wait after pointing out a problem.
At the same time as asking the other party to provide the bundle 14 days before trial, you can ask them to send two copies to you if you need a second copy (e.g. for a barrister you engage to represent you at the trial). Often the court/tribunal order will only require the bundle-producing party to provide you with one copy of the trial bundle but there is no reason why they should not provide you with two if you ask in advance since producing one extra copy when they are already producing several anyway (for themselves and for the court/tribunal) normally adds little extra time/cost (especially if the other side has solicitors and it is solicitors who are actually producing the bundle - producing bundles is something solicitors do regularly and one extra copy is easy for them). The other party may ask you to pay a modest charge for printing out and assembling the second copy. If they do it is still generally better to get them to produce the second copy. If you do it yourself by photocopying the bundle they have provided to you, that will introduce extra delay and the quality will not be as good (every time a page is photocopied the quality is slightly reduced). Of course if the other party can send you a PDF copy of the bundle as well as one hardcopy, then it is easier for you to print out and assemble a second hardcopy yourself from the PDF, but if they are using the typewriter/biro/photocopier method so that they are only providing a hardcopy, it is generally easier to get them to produce any second hardcopy you require.
3. Put all the documents you think should be included in the Trial Bundle in a Caselines case named e.g. Smith v Jones – Documents to be Included in Trial Bundle. Include not just all the documents you will be relying on but also all documents the court/tribunal would always expect to see in a trial bundle such as pleadings and orders. Also include documents it is clear the other side will want to rely on such as the other party's witness statements. In other words include everything you would have included if you had been the party responsible for producing the Trial Bundle. If you do this it means that if the bundle-producing party completely fails to deliver any bundle at all (to you and to the court/tribunal) you can quickly rename the case to Smith v Jones – Trial Bundle produced by Defendant (if you are the Defendant) and produce and deliver a complete Trial Bundle yourself. It would be unusual for this to be to happen but it is reassuring to know that you are ready to deal with the worst eventuality.
4. Download a list of documents in the Smith v Jones – Documents to be Included in Trial Bundle case. You can use this list of documents when corresponding with the bundle-producing party.
5. Send the bundle producing party an email saying e.g.-
pasting into the email the list of documents. You can send this email to the other side as soon as you know what documents you want included (i.e., in most cases, you will be ready to send it once witness statements have been exchanged and any expert reports have been dealt with). There is generally no need to wait until nearer to the trial. In fact the earlier it is sent the better because if there are to be any disputes or queries about what can be included, the earlier you make clear what documents you want to be included the more time there is to deal with any query or dispute or (if necessary) to make an application to the court/tribunal for exceptional permission to use a document (e.g. if the court/tribunal had previously ordered disclosure of documents and the particular document was accidentally missed off a disclosure list or described in an ambiguous way).
6. If you are sent a draft index for approval, or any other correspondence by the bundle-producing party, in your reply, after making any necessary observations, add
7. If the bundle-producing party refuses outright to include a document which you are entitled to have included or if, though they do not actually refuse, they do not expressly agree either and you get the impression that there is some resistance, you should say that if necessary you are prepared to produce a Supplementary Trial Bundle - e.g.
In the above sample message it says Defendant's Supplementary Trial Bundle assuming that you are the Defendant. If you are not Defendant but are the Applicant or Respondent or have some other title in the proceedings, then of course you would change the name in the above sample message accordingly. For brevity, in the remainder of this article I will refer to the reader - the party who has not been ordered to produce the Trial Bundle - as the Defendant, but change as necessary if Defendant is not the correct title.
8. The bundle-producing party may be just "trying it on" to see whether, in all the complicated correspondence about the Trial Bundle, you will be able to keep track and maintain your insistence on documents to be included. If the bundle-producing party is trying it on, your mentioning that if necessary you are prepared to produce a Supplementary Trial Bundle may cause the bundle-producing party to conclude that their game is not worth the candle, and they may start to be more co-operative. About two weeks before the court/tribunal-ordered deadline for delivery of the Trial Bundle may be an appropriate time to mention, if necessary, the possibility that you may have to produce a Supplementary Trial Bundle.
9. "Without prejudice except as to costs" offers made by one party, but not accepted by the other, should not be included in a Trial Bundle 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 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 any Supplementary Trial Bundle which you have to produce.
10. Most sensible people do not leave things to the last minute so you are likely to receive the Trial Bundle from the bundle-producing party well before the court/tribunal-ordered deadline. Two weeks before the deadline you should send an email like this:
11. If you have not received the Trial Bundle one week before the deadline you should send an email like this:-
12. When you receive the Trial Bundle (before the deadline), check it immediately and if there is anything wrong with it and there are still a few days to go before the deadline, you should immediately point this out - if the bundle-producing party immediately corrects the problem (e.g. by producing replacement/additional pages and inserting them into all copies of the bundle) then that is fine. However if you get to 24 hours before the court/tribunal-ordered deadline for delivery of the Trial Bundle and the problems have not been corrected then you should produce a Supplementary Trial Bundle containing documents missed out and legible copies of any documents which are included in the main Trial Bundle but illegible (poor quality copy and/or black and white copy of colour document). As you have all the documents in the Smith v Jones – Documents to be Included in Trial Bundle case you can easily do this by renaming the case to Smith v Jones – Defendant's Supplementary Trial Bundle and ticking the "included in main bundle" box just for those documents to be included in the Supplementary Trial Bundle.
13. If you receive the Trial Bundle less than 24 hours before the deadline and there are missing/illegible documents (or if you receive it earlier but, 24 hours before the deadline there are still uncorrected omissions/illegible documents) don't delay - start producing the Supplementary Trial Bundle straight away. Tell the bundle-producing party that this is what you are doing and why but don't wait for a reply. If they remedy the Trial Bundle quickly, before you have produced and delivered the Supplementary Trial Bundle, all well and good, but don't delay waiting for them to do that or waiting for them to reply.
14. Generally you don't want to send out the Supplementary Trial Bundle before you have received the main Trial Bundle because, no matter what the bundle-producing party may say about what they are going to include, it is only when you actually have all pages of the main Trial Bundle in front of you that you can tell whether it contains legible copies of all documents the other party has said it will (and you don't want to send out a Supplementary Trial Bundle only to have to send out a further Second Supplementary Trial Bundle with additional documents). So wait until you get the main Trial Bundle before producing the Supplementary Bundle. If the bundle-producing party only delivers the Trial Bundle to you a few hours before the court-ordered deadline deadline for delivery, it may be that you will not be able to check it and produce and deliver any necessary Supplementary Trial Bundle until several hours after the deadline but this cannot be helped (you should make a note of exactly when you received the main Trial Bundle).
15. The process of producing a Supplementary Trial Bundle is very similar to the process of producing the main Trial Bundle except that the idea is that it only contains documents missed out of the main Trial Bundle or documents which are illegible in the main Trial Bundle so you would be ticking the "included in main bundle" box just for those documents to be included in the Supplementary Trial Bundle. The court/tribunal will not want "rival" bundles with most documents in both: if the main bundle-producing party has failed to include documents you have told them in good time you require to be included then the court/tribunal should accept a Supplementary Trial Bundle from you but will generally expect it to contain only additional documents (or clear copies of illegible documents). That said, there may be occasions where a modest amount of duplication is sensible. For example if the main Trial Bundle has missed out one page of a multi-page document, you obviously need to include all pages of the document in your Supplementary Trial Bundle, not just the single missing page. So if there is a 10 page contract and the main Trial Bundle omits page 8 of the contract and the bundle-producing party refuses/fails to insert the missing page, your Supplementary Trial Bundle needs to contain all 10 pages of the contract because the judge will not want to read the first 7 pages from one bundle and then have to turn to a separate bundle to continue reading the document. Another example: if the main Trial Bundle contains a letter but does not contain copies of the documents which were enclosed with that letter then you need to include a copy of the letter as well as of the omitted enclosures in your Supplementary Trial Bundle. A further example where a modest amount of duplication will help rather than hinder the judge is if there is a short run of rather cryptic correspondence - say 5 short letters - all of which have to be read together to understand the gist of the exchange. If the bundle-producing party have missed one of the 5 letters out, it may be appropriate for you to include all 5 letters in your Supplementary Trial Bundle. But the general idea is to avoid duplication.
16. Make sure that all copies of the bundle you produce are clearly marked Defendant's Supplementary Trial Bundle (if you are the Defendant). You have to produce and deliver exactly the same number of copies as for the main Trial Bundle (and, if at all possible by, the same deadline). For example if the court/tribunal has ordered the bundle-producing party to provide 2 copies of the Trial Bundle for each party and 2 copies for the court/tribunal, then you must deliver 2 copies of the Supplementary Trial Bundle to your opponent and 2 copies to the court/tribunal, keeping 2 copies for yourself. It is worth producing and bringing an extra copy to the trial just in case the other side fail to bring theirs. When delivering the copies of the bundle to the court/tribunal office, they should be accompanied by a covering letter giving case number and name, and the date of the first day of the trail, and explaining that it has become necessary for you to produce a Supplementary Trial Bundle because the other party has missed out documents and/or produced illegible copies.
17. If you get to the court/tribunal ordered deadline for delivery of the Trial Bundle by the other side and you have not received it, you will have to produce a complete Trial Bundle. To do this you rename the Smith v Jones – Documents to be Included in Trial Bundle case to Smith v Jones – Trial Bundle - produced by Defendant and print out, assemble and deliver copies. You have to produce and deliver exactly the same number of copies as has been ordered for the Trial Bundle the other party should have produced. For example if the court/tribunal has ordered the bundle-producing party to provide 2 copies of the Trial Bundle for each party and 2 copies for the court/tribunal, then you must deliver 2 copies of your Trial Bundle to your opponent and 2 copies to the court/tribunal, keeping 2 copies for yourself. It is worth producing and bringing an extra copy to the trial just in case the other side fail to bring theirs. When delivering the copies of the bundle to the court/tribunal office, they should be accompanied by a covering letter giving case number and name, and the date of the first day of the trial, and explaining why it has become necessary for you to produce the Trial Bundle.
18. Once you get to the court/tribunal ordered deadline without having received the Trial Bundle from the other side, don't delay - start producing your Trial Bundle. Tell the other party that this is what you are doing and why but don't wait for a reply. If they deliver a Trial Bundle to you quickly, before you have produced and delivered your Trial Bundle, then, if you have time, you may be able to just produce a Defendant's Supplementary Trial Bundle instead, containing only additional documents not contained in the Trial Bundle you have just received (rather than send out your full Trial Bundle) but don't change tack if it risks more delay.
As well as ensuring that the bundle-producing party includes in the Trial Bundle the documents you want, it is also important to ensure that the bundle-producing party is not putting in extra documents they are not entitled to - unless you agree.
Neither party can include offers or responses which are "without prejudice except as to costs" (or "without prejudice", "Calderbank" or "Part 36") because the judge must not see these until after the judge has given judgement (decided who wins) - or not at all in the case of "without prejudice" offers/responses.
If there has been an order for Exchange of Witness Statements by a particular date the other party is not entitled to include any further Witness Statement which was not exchanged.
If there has been a Disclosure of Documents order made in the case then generally your opponent is not entitled to put in the Trial Bundle any evidential document not previously disclosed by a party. An evidential document is a document which tends to prove something, such as a photograph or a letter written at the time of the disputed events which have given rise to the litigation.
Note that the bundle-producing party can include the following which are not documentary evidence:-
The litigation process itself produces a number of documents such as pleadings, Application Notices, correspondence between the parties, and orders and notices of hearings issued by the court/tribunal. Some of these such as current pleadings, and orders/notices relevant to the trial, and perhaps some selected correspondence, should be in the Trial Bundle but much does not need to be in the Trial Bundle. If the bundle-producing party want to include in the Trial Bundle some litigation documents which you do not think are necessary that would not normally be something to object to although you might want to query if they appear to be proposing to include in the Trial Bundle large numbers of what appear to be irrelevant documents.
If the court/tribunal is one in which costs may be awarded at the end of the trial then each party will have costs documents such as a Schedule of Costs, and documents in support such as invoices from a document scanning company, from an expert witness, or from a barrister etc. It would be unusual for the bundle-producing party to include costs documents in the Trial Bundle because the final Costs Schedule is normally produced just before the trial (so normally after the Trial Bundle has been delivered to the court/tribunal) so that it can include all expenditure, and the receipts relied on are not relevant to the trial itself and would normally accompany the Costs Schedule (either stapled to it or perhaps in a separate Costs Bundle for use after judgment has been given at the end of the trial). If the bundle-producing party does include some costs documents in the Trial Bundle that would be unusual but would not normally be something to object to. Strictly speaking, invoices for the fees of e.g. an expert witness are "documentary evidence" but the normal order by a court/tribunal for Disclosure of Documents does not apply to them because they 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 of course revealed, in some circumstances give the other side an unfair tactical advantage). The deadlines by which Costs Schedules and supporting evidence must be produced is governed by different rules to the rules governing documentary evidence in general.
The court's/tribunal's order may require a Case Summary to be produced and, even if not ordered, it is generally permissible for the bundle-producing party to produce a Case Summary if they think it may be of assistance to the trial judge. A Case Summary is not really part of the Trial Bundle as such - it is normally written after the Trial Bundle has been produced because the person writing it has to read and consider some at least of the contents of the Trial Bundle when writing it - but it is convenient for the court/tribunal for the Case Summary, if there is one, to be physically present at the beginning of the lever arch file containing the Trial Bundle when it is delivered to the court. This is usually easy to arrange because the the Trial Bundle is normally first produced and delivered to the other party and only a week or so later are copies delivered to the court/tribunal (because of physical storage limitations the court/tribunal often directs the earliest date, as well as the latest date, that the trial bundle should be delivered to it). So it can contain a tab at the front, ready for the Case Summary, and, once the parties have agreed the Case Summary, it can be inserted after that tab in all copies, before the court/tribunal's copies are delivered.
A Case Summary, which, if present, will be at the front of the Trial Bundle (normally after the Index but unpaginated) assists the judge by introducing the key features of the case before the judge reads further into the Trial Bundle. A Case Summary should be non-contentious and should be agreed between the parties if possible. If agreement on a Case Summary is reached by the parties before the Trial Bundle is delivered to the court/tribunal, it can be headed "Agreed Case Summary". Otherwise it is just headed "Case Summary". You may feel unable to agree a Case Summary put forward by the bundle-producing party because, whilst everything it says is correct as far as it goes, you feel that it is unbalanced - including too much material which tends to favour the other side's case and not including some details which favour your own case. This is not unusual. A Case Summary is by definition a summary and with the best will in the world sometimes parties cannot agree precisely what details it should mention and which it should leave out. If you cannot agree on a Case Summary then the bundle-producing party can still include their Case Summary in the Trial Bundle. This in itself does not, of course, prevent the disputing, at trial, of any parts you disagree with.
The court's/tribunal's order may require a Chronology to be included in the Trial Bundle and, even if not ordered, it is generally permissible for the bundle-producing party to include a Chronology if they think it may be of assistance to the trial judge. A Chronology should be non-contentious and should be agreed between the parties if possible. If there is a material dispute about any event stated in the chronology, that should be stated in neutral terms and the competing versions shortly stated. If agreement on a Chronology is reached by the parties before the Trial Bundle is sent out, the Chronology can be headed "Agreed Chronology". Otherwise it is just headed "Chronology". Again the inclusion of a Chronology you disagree with does not prevent the disputing, at trial, of any parts you disagree with. Like the Case Summary (on which, see above) a Chronology is not part of the Trial Bundle as such but if there is one it is convenient to include it in the Trial Bundle lever arch file (after a tab just after the Case Summary) before delivery to the court/tribunal office.
Sometimes a court/tribunal orders "skeleton argument" documents to be exchanged and delivered to the court/tribunal office by a specific date, but skeleton arguments are allowed even if no order has been made. The idea of Skeleton Arguments is that they give a foretaste of what the advocate at trial (normally a barrister) is going to argue orally - the oral argument, to continue the metaphor, puts the flesh on the bones of the skeleton. Argument may refer to evidence in the Trial Bundle, or to evidence given by witnesses at trial on oath, but argument is not itself evidence. This is why a Skeleton Argument is allowed to be produced late in the day. If the court/tribunal has not specified a deadline for exchanging/delivering to the court/tribunal office, then a skeleton argument might even be given to the other side and handed in to the court/tribunal on the first day of the trial. This is not considered to prejudice the other party (as long as it is handed to the other party in time for them to properly read it before the trial starts) because it is just a foretaste of what is going to be argued orally in the trial. All the normal rules about what matters have to be in the pleadings, if they are to be argued, still apply. Skeleton arguments are not part of the Trial Bundle as such but if the court/tribunal has ordered skeleton arguments to be exchanged by a specific deadline which is before the deadline for delivering the Trial Bundle to the court/tribunal then it may be convenient to include them in the Trial Bundle lever arch file. It is to be expected that you will disagree with the other side's skeleton argument (if there were agreement then litigation would not have been commenced) but that is not, of course, a reason to object to its inclusion.