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Much has been written about poor litigation bundles. The myriad of rules and practice directions with which to comply across a variety of practice areas can be challenging. The starting point for civil cases is the Civil Procedure Rules part 39.5 which in turn refers to any relevant practice direction and court order. Most of the civil jurisdictions have their own practice direction which specifies the order and content of the trial bundle together with when and how it should be lodged. There is also clear guidance relating to appeal bundles.
"Not a Bundle of Fun: the President's Direction on Court Bundles" appeared in the November 2006 edition of the Family Law Journal and was written by Barrister Julien Foster. He noted that the current Practice Direction in family cases is twice as long as the previous one and is far more detailed. While it clarifies certain ambiguities that existed in the 2000 Practice Direction Foster comments that it places a further significant administrative burden on solicitors. Some practices have attempted to address this burden with case management software which has a "bundling" element but the demands on staff time and overheads remain significant.
Foster predicted that some unfortunate solicitor would fall foul of the practice direction and sure enough Mr Justice Mumby fired a warning shot to the profession in his judgment in Re X & Y (Bundles) [2008] EWCH 2058 (Fam) when he said:
"Too often bundles arrive late or not at all. Too often bundles are incomplete or not up-to-date...This continuing failure by the professions to comply with their obligations is simply unacceptable. Enough is enough... There is the sanction of costs, either orders for costs against the party in default or orders for costs to be paid by the defaulting lawyers…. There is the risk that those who default may find their cases put to the end of the list… Sometimes...there will be no option but to take the case out of the list altogether – to adjourn to a date which may or may not be in the near future. In particularly egregious cases, defaulters may find themselves publicly identified in judgments delivered in open court."
The Commercial Court's electronic case record system has been altered to enable the electronic filing of documents, including the Bundle. Furthermore an electronic filing system has also been introduced in the new Supreme Court. Unless permission is given, all documents and bundles submitted to this court must be sent both electronically and as conventional paper-based files. There are obvious carbon savings in electronic bundles as opposed to paper ones and preparation can be more efficient with adobe facilities such as keyword searches.
Firms surviving the downturn appear to be outsourcing what they can. Bundle preparation would seem to fall into the category of tasks which could be outsourced to great affect. However, this requires practitioners to think differently about the way they have traditionally prepared for litigation. There is also the matter of complying with the relevant rules of conduct to ensure the confidentiality of the materials outsourced. Guidance to rule 4 of the Solicitors Rules of Conduct regarding confidentiality and disclosure at paragraph 8 (f) states
"If you outsource services such as word processing, telephone call handling or photocopying you must be satisfied that the provider of those services is able to ensure the confidentiality of any information concerning your clients."
The Bundle Business Ltd
Tel: 01539 729441.
Recognised and regulated by the Solicitors Regulation Authority and the Information Commissioners Office this firm is able to provide trial and court bundles for other legal professionals electronically and on paper through secure website accounts.
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