Tagged: bundle

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Navigating the bundle

Solicitors who compile hearing bundles sometimes put in a tabbed divider card for every single document. That’s a pain: it adds a lot of bulk to the bundle and obscures the post-it notes you want to add to mark the most important documents.

But it’s true that it can be helpful to be able to flick quickly to the next document. The other week, dealing with a fat bundle, I got bored of repeatedly turning through the pages of a management statement of case – complete with multiple appendices – in order to get to the next document in the chronological sequence. So I used a heavy-duty hole punch to make a notch in the top right hand corner off all the pages of the statement of case and its appendices. That made it easy to skip to the end of the statement of case.

Not rocket science – just a little thing that can make life slightly easier in a paper-heavy case.

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What if you can’t agree on the content of the bundle?

If both sides are sensible, this won’t happen. That doesn’t mean that you’ll always agree what’s relevant – it’s just that it’s rarely worth falling out over. If there’s a really good reason not to want the tribunal to see it at all – for example, because it’s privileged – and it’s important enough, you may need to ask the tribunal to conduct a case management discussion so that an employment judge can rule on the question. But otherwise – if the other side wants to put something in, let them. If you don’t think it’s relevant, save your breath for explaining to the tribunal why they should ignore it.

Of course, ‘if both sides are sensible’ is quite a big if. The other side may just refuse to agree to a bundle that includes all the documents you want to rely on.

But if this happens, don’t waste time quarreling about it. Compile a bundle of all the documents you want, plus all the documents the other side wants. Send them a draft index page, and invite them to tell you if you’ve missed anything they want included. Tell them you propose to bring sufficient copies of your bundle to the hearing, whether they agree or not. If they want to produce a more limited rival bundle, that’s a matter for them. As long as yours doesn’t leave out anything they want in, yours will be more complete. As long as it’s not too huge, that will probably be enough to persuade the tribunal to use it.

Slightly different considerations may arise in the Employment Appeal Tribunal, where there’s a rule that the bundle shouldn’t normally exceed 100 pages. If you think you need more than 100 pages, you’ll need to write to the Registrar explaining why, and asking for permission to lodge a longer bundle. If the other side disagrees, they will probably write in to object. The Registrar or a judge will decide. (See paragraphs 4 and 6 of the EAT Practice Direction.)

If your version of the bundle comes in under 100 pages, but the other side still objects to some of what you want to include, just lodge your version. Explain in the covering letter that you haven’t been able to agree it with the other side, but it includes all the documents they say they want to rely on, plus some others that you consider relevant and they object to.

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Small things about big cases

A paper-heavy case – where the hearing bundle runs to several volumes and there are a dozen witnesses or more – presents various specific difficulties. The main one of course is that there is a lot of material to get your head round. There’s no quick fix for that: preparation will take a long time.

This post just offers a handful of very small ways to make life easier.

1. Label the inside cover of each volume of your bundle with the volume number and the page range. That way, you’ll be able to identify the different volumes of your bundle at a glance when they’re open on the desk in front of you.
2. Print your own copy of the bundle double-sided. It’ll weigh half as much and take up half as much space. There will be some minor inconvenience (e.g. where you need to insert additional pages after the bundle is printed), but the reduction in general hassle is worth it. If you want to reduce your bundle to quarter size and you have good eyesight, print it double-sided on A5 paper.
3. Write the name or initials of the witness at the top of each page of the witness statement. (If it’s your statement, include it in the ‘header zone’ of the document; if it’s the other side’s, and they haven’t done that, just write it on each page.)
4. Print claimant and respondent witness statements on different coloured paper, so you can tell at a glance which is which.

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This is my bundle, there are many like it but this one is mine

It is impossible to overemphasise the importance of the bundle to employment tribunal proceedings. But I shall try.

It is the alpha and the omega, the first and the last; the ying and the yang; the land, the sea, the air and the earth. If this sounds like rather mystical talk for an employment law site, it is. But I am struggling to express the true importance of the bundle.

Unless everyone in the room has a copy of the same indexed, paginated set of all the relevant documents all other action becomes difficult or even impossible.

You can’t give evidence, because nobody can look at the documents that you are talking about. You can’t cross-examine, because it’s impossible to confront the lying witness with the incriminating email. You can’t make submissions, because the subtle point of contractual construction you wish to present won’t be understood by a tribunal who cannot read the contract.

If there is no bundle the very best that you can hope for is that everyone will somehow struggle through by sifting through piles of paper and passing documents around. Even if the tribunal lets you get away with this — and most won’t — it will be a unpleasant, frustrating experience.

Even a bad bundle — one that is incomplete or poorly organised — makes things surprisingly difficult. Almost everything you do in a hearing involves the bundle, and if it is difficult to use, everything is just that little bit harder.

Turning up with no bundle, or a bad one, will also annoy the tribunal. This is understandable. They have a demanding and difficult job to do; they want to get on with it. If there is no bundle, their ability to do so is crippled and their time is wasted.

This means that it is vital that that you make sure that there is an appropriate bundle prepared for the hearing and that there are sufficient copies of it. You need at least six — three for the tribunal (unless a judge is sitting alone), one for the witness table, one for yourself and one for your opponent.

Normally, the tribunal will have issued orders about the disclosure of documents and bundles. If everyone follows them all will be well.

But things don’t always go smoothly. It may be that the respondent is uncooperative or you take on representation close to the hearing to find that nothing has been done.

In that situation, you need to try hard to get things sorted out. If you haven’t disclosed documents, do so as soon as possible and offer to prepare the bundle (or a new bundle, if necessary). If it is the respondent holding things up, chase them.

If the respondent is uncooperative, tell them what you’re proposing to do, give them a chance to respond or contribute, and then if they don’t respond usefully, do what you have proposed For example, write saying something like “I have sent a number of letters trying to agree a bundle, but I have not had a reply. Unless I hear from you in the next seven days, I will assume that you agree to the proposed index I sent with my last letter.” Then, if you don’t get a reply, you produce the bundle according to your proposed index and send a copy to the Respondent.

The position you want to get to is that, if a grumpy tribunal judge starts in at the beginning of the hearing with “Where is my agreed bundle? Why haven’t the tribunal’s orders been followed?” you are safely on the moral high-ground, having done everything you can to get a sensible bundle ready. If you have succeeded, the hearing has a better chance of going ahead smoothly; and if you haven’t, at least it should redirect the judge’s irritation to the other side where it belongs.

There is a deeper lesson in all of this. We like to think that legal practice is all about our rhetorical eloquence, searching cross-examination and incisive legal analysis. And so it is, on a good day. But it is also about making the nuts and bolts of the process work. Until you have done that, you can’t hope for a good day.

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We have both previously posted about Mehta v Child Support Agency, in which the EAT doubted the usefulness of having witnesses read their statements aloud: see Reading statement aloud and Follow up on witness statements.

Another consequence of the shift in practice this has caused is that tribunals are more likely to want to pre-read not only the witness statements, but also the key documents they refer to. This means it’s a good idea to have formed a view before the hearing starts which documents the tribunal is going to need to read in full, and roughly how long it’s going to take them. Agree a pre-reading list with the other side if possible.

How do you decide which documents to put on your list? This isn’t a hugely important decision, so don’t agonise over it – but sensible decisions will help the hearing go more smoothly, so a few rules of thumb may be helpful.

  • Include any substantial document that forms a crucial part of the story: e.g. in a dismissal case, notes of the investigation meeting, the letter inviting you to a disciplinary hearing, notes of the disciplinary hearing, the dismissal letter, your appeal, notes of the appeal hearing, the appeal outcome letter
  • But don’t make them read lengthy documents just for ‘completeness’ – so e.g. if there are pages and pages of notes of the investigation meeting and the disciplinary hearing, covering very similar ground, you may not need to make the tribunal pre-read both.
  • Just because you haven’t put a document on the pre-reading list, it doesn’t mean you can’t take a witness to it in cross examination.
  • Don’t include documents that won’t make any sense to the tribunal until a witness has explained how it works and what it means.
  • Don’t bother with very short documents whose whole significance the tribunal can be expected to get at a glance.
  • How long will pre-reading take?

    It depends, of course. How many pages there are to read. Whether they are single or double spaced. Whether they are typed or handwritten; and if handwritten – whether by a primary school teacher or a doctor. How quickly the slowest member of the tribunal reads. Whether they are clear and succinct, or waffly and verbose.

    For now, try 50 pages an hour as a rough rule of thumb. And please make a note in your next hearing of how many pages you ask the tribunal to read, and how long it takes them – and then comment on this post, so that we can collect some data and refine this estimate.

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    Bundles again

    Regular readers of this blog will know that we are both mildly obsessive on the subject of bundles. I’ve recently collected another simple but effective way of sabotaging the bundle:

    Bind it in a way that makes it impossible to insert extra pages – a spiral binding or similar will do the job.

    Let’s hope no-one ever does this on purpose imagining that they are being cunning – because it’s certainly not going to stop the tribunal accepting additional documents that weren’t in the original hearing bundle. It’ll just mean that when they do, everyone ends up with stray bits of paper floating around their desk in no particular order, getting in the way or getting lost.

    It’s much more sensible to do the usual thing and present bundles in ring binders or lever arch files. Then any extra pages can be inserted in their chronological place in the bundle, and given numbers that correspond with where they’ve ended up: e.g. 2 extra pages between 71 and 72 can be numbered 71a and 71b.

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    Another bundle bungle

    When you think you must have seen all the ways there are to make a bundle inconvenient and annoying to use… along comes a new one.

    A tabbed divider card between each document and the next is annoying – because it fattens up the bundle to no purpose, and obscures the sticky-notes that you want to use to mark the most important documents. But normally it’s not much of a problem – all you have to do is remove the divider cards, and you have a usable bundle.

    But the advanced bundle-saboteur has thought of this. He’s re-started the pagination at 1 for each tab. Now to identify any page, you need two numbers: the tab number and the page number. So if you take out the annoying divider cards, you can’t navigate the bundle at all. Neat, isn’t it?

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    Finding things

    Finding what you want in a hurry is a large part of conducting a hearing in an orderly way. Having to keep pausing in the middle of your cross-examination or submissions to hunt for a document wastes time time and interrupts your train of thought at best – and if you can’t find what you’re after, may deprive you of good points you could otherwise have made.

    A lot of the answer is just to know the bundle well. But you can also develop certain habits that will help you navigate smoothly. What the habits are will depend on your own way of thinking and doing things. You may find colours helpful – for instance flagging certain sorts of documents in particular colours, highlighting one corner of respondents’ witness statements in one colour, claimants’ in another, using coloured paper for a particular document (e.g. your chronology) that you may want to refer to a lot. Or it may be about where you put things: if you always tuck your list of issues inside the front flap of your bundle, then you will always know where to look for it. If you always write a list of the witnesses and key players on the first page of your notebook, you will know where to find that too. If you’re lucky enough to be able to commit key page numbers to memory without breaking sweat, do that. If your bundle runs to several volumes, make sure there is a clear label on the inside cover of each volume as well as on the spine – that way if you have 2 or 3 volumes open, you will still be able to tell at a glance which is which.

    These are all just examples. The real point is to notice what’s tripping you up, and then apply a bit of thought to how you can prevent it.

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    Quite a lot of material presented to tribunals is illegible.

    There are good reasons for this. Many documents produced out in the real world are written under significant time pressure and in less than ideal circumstances. Notes written during, say, a disciplinary hearing are unlikely to be written in a clear round hand. Particularly if the meeting was tense.

    On the other hand, a surprising number of ET1 and ET3’s require a magnifying glass and some time to decode.

    If you have bad handwriting it is worth typing as much as possible. If this is not possible, you must just take as long as it takes to produce a legible document.

    When dealing with existing documents that are particularly hard to read, the sensible approach is to produce a typed version. In most cases you should be able to agree its accuracy with the Respondent. Even if you can’t, it is worth doing. The tribunal can always check the accuracy against the original if there is a problem.