Bundles - What to do if you think the other side is including documents unecessarily




When you are in the process of agreeing with the other party what documents should be included in a Trial Bundle being produced by the other party, you will be mainly concerned that the bundle includes all documents you wish it to include and that it does not include any documents the other party is not entitled to include (e.g. without prejudice offers). However sometimes you may feel that the other party is proposing to include a large number of documents which, whilst not prohibited, are nevertheless unnecessary.

If you think that documents the other party propose to include are unnecessary the following tips may help you decide what to do. 

1. It is important to keep a sense of proportion. If the other side is proposing to include, in a 300 page bundle, 10 pages which you think are unnecessary, it is going to take more time and expense to query that than to simply let it pass. Court/tribunals often emphasise that only necessary documents should be included but the main target of their ire is cases where large numbers of documents which neither side could reasonably think relevant are included.

2. Most correspondence between parties (or between their solicitors if they have appointed solicitors) after litigation has commenced (often called inter partes correspondence) will not be probative - i.e. will not be useful evidence which will help the judge decide the case - so if the other side is proposing to include all or most inter partes correspondence you might feel that, in the interests of saving costs and the trial judge's time, you should point that out to the other side. However before you do this it is important to check that there are not, buried away in all that correspondence, some letters you might wish to rely on. For example:

  • Is there a letter or email from the other party saying something about past events which is different from (and therefore casts doubt on) what that party is asserting in the litigation?
  • Is there a letter or email which is not just about past events but has some current significance such as:  
    • A letter or email (from either side) which communicates a decision the writer has made - for example saying that they are exercising an option which they have under a contract, or giving notice to quit, "rejecting" goods delivered which do not conform with the contract of sale, severing a joint tenancy, or terminating a contract; 
    • A letter or email offering to do something - e.g. offering to do something practical to ameliorate a problem;
    • A letter or email which makes a legal admission, such as acknowledging that another party has good title to land.  
If there are items of correspondence you want included then you need to make this clear at the same time as you point out that including the remainder of the inter partes correspondence is unnecessary. 

3. Often if the other side are proposing to include all, or a large amount, of inter partes correspondence they will be doing so because, when the time for arguments about costs arises, immediately after judgment, they want to refer to it to make some argument about costs. (the best way to deal with correspondence relevant only to costs is for a party to create its own Costs Bundle and include the correspondence there, not in the main Trial Bundle, but not everyone does this)  If this is why they want to include the inter partes correspondence you will probably not get very far if you query why specific letters need to be included because often a letter or email has to be seen in the context of the overall chain of correspondence on a subject, and there is little point incurring time and expense, before trial, arguing by correspondence over fine textual analysis and matters of context. But what it is important to do, to save the court's/tribunal's time, is to get the other side to put the bulk of inter partes, which is relevant only to costs, in a separate volume of the trial bundle clearly marked Inter Partes Correspondence - relevant to costs so that the judge knows that it does not need to be considered until after judgment.         

Disclaimer

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.

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