Tagged: bundle

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Another thing about bundles

If your hearing bundle runs to more than one volume, divide the volumes at round numbers if you sensibly can – so, for example, don’t put pages 1-437 in volume 1 and pages 437-623 in vol. 2. Put pages 1-400 in vol. 1, and 401-623 in vol. 2. The more volumes you have, the more this will help everyone find their way around.

But don’t stick to round numbers at the price of daft divisions, obviously. If there’s a two-page dismissal letter starting on page 400, you’ll want to find the second page next to it – not at the beginning of vol. 2 of the bundle.

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There is no order but chronological order (II)

Even if it seems like a good idea to arrange the papers in the bundle in some order other than strict chronological order, it isn’t. Really and truly.

One particular situation in which people compiling bundles tend to be tempted to use a non-chronological order is in discrimination cases where actual comparators are involved. Sometimes you see a bundle separated into ‘claimant documents’ and ‘comparator documents.’

But the point of a comparator is to compare. So – for example – if you are saying you applied for a promotion, and someone less well-qualified than you was appointed, the bundle will contain in your application and his. The tribunal is going to want to look at the two applications and compare them. That will be inconvenient if there are two or three hundred pages between them: either the tribunal (and everyone else) will keep having to turn backwards and forward through a fat wodge of paper – or else they will have to pull one of the applications out of the bundle so as to be able to look at it side-by side with the other.

If the documents are in strict chronological order, the two applications are likely to be next to each other in the bundle, or very close – so flipping from one to the other and back again for the purposes of comparisons will be easy.

This is a particular instance of the general observation that tribunals generally prefer to hear stories in chronological order – so that is the order in which, by and large, they will expect witnesses cross-examined. So in general (there will be exceptions of course), if you need to cross-examine a witness on a number of different documents, you will start by asking them to open the bundle near the front, and then you will work through it towards the back.

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Whose job is it to prepare the bundle?

Strictly speaking, if you are the claimant, it’s your case – so it’s your job to prepare the bundles for the hearing and provide copies for the other side and the tribunal. You’ll need 6 copies: 1 for you, 1 for your opponent, 3 for the tribunal, and 1 for the witness table.

In fact, bundles for the employment tribunals are probably more often prepared by the employer’s representatives. The reason for this is that in many cases, only the employer is represented by solicitors. Solicitors have fancy photocopiers and heavyweight hole-punches and people who are practised at preparing bundles, so it tends to be assumed that they should do it because it will be easier for them.

The main advantage in doing the bundles yourself is that it gives you control over when the job gets done – there’s no risk that you will only get your copy the day before the hearing and have a very short time to get to know it, mark it with highlighters, stick post-its on the most important pages etc. But if you trust the solicitors on the other side to do a competent job in reasonably good time, and they are willing to do it, you might as well let them.

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Question: Why is a tribunal bundle not like a vinyl record?

Answer: It only has one side.

Hearing bundles, and for that matter, all tribunal documents, are normally printed single-sided.

There is an argument to be had over whether this is a good thing. Single-sided printing means that the blank side can be used for notes, and it is easier to ‘flag’ the bundle with post-its. On the other hand, it does produce bulky files of paper that are hard to manoeuvre. Then there is the environmental damage.

Regardless of your position in that debate, it is best to fall in with the general practice and give the tribunal what it is used to.

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Small is beautiful

Tribunals occasionally direct that the hearing bundle is to be limited to a fixed number of pages.

This is on the whole a good idea. Most bundles contain a lot of documents that don’t need to be there and won’t be referred to during the hearing: see Sedley’s laws of documents. The parties put them in ‘for completeness,’ or because putting them in ‘just in case’ saves making a decision about whether or not they will be needed.

If the tribunal directs that the bundle is to be limited to, say, 300 or 500 pages, the two sides will actually have to think about what they want the tribunal to see. Does the whole of the Employee Handbook really need to go in? Is there any dispute about whether the grievance procedure was properly followed – if not, what’s the grievance procedure doing in the bundle? Does that long email string about when the disciplinary hearing is to take place actually matter?

In the end, a document only needs to be in the bundle if the tribunal needs to read it in order to understand the story properly, or if one side or the other wants to use it in cross-examination. If it doesn’t tick either of those boxes, it’s a waste of paper.

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The tripod

One of the difficult things about running a tribunal case for the first time is the uncertainty about what needs to be done before the hearing. The first step – putting in your ET1 – is fairly obvious, but after that it is easy to get overwhelmed.

If the tribunal has made detailed case management orders, this makes things simpler. If you follow them, you should do most of what you need.

Otherwise, it is worth remembering that there are three main things you need to sort out before you reach the tribunal. This is a gross simplification, but it is worth bearing in mind if you are uncertain what to do next.


When the hearing starts you want to have an agreed bundle of documents, containing all the relevant evidence.

Normally, this means you need to do two things: discovering and bundling.

Discovery is the process of figuring out what documents you have; then asking the respondent for documents they have, and getting a tribunal order if necessary.

Bundling is the process of drawing up an index of the relevant documents (not the same thing as all the documents), putting them in chronological order and paginating them. Paginate is a fancy lawyer’s term for writing page numbers on them. Then you have to agree the bundle with the respondent.

Witness Statements

All of the people who are going to give evidence should have prepared a witness statement and these should be exchanged with the respondent.

Know what you are going to say

Basically, you need to be ready to do two things: cross-examine witnesses and make submissions.

What this will involve will vary from case to case. An experienced advocate, dealing with a simple case, might just jot a few points on a sheet of paper. On the other hand, in a complicated case, or if it will be your first time in a tribunal, you will want to do a lot more.

A good starting point is a list of issues the tribunal will need to decide. Once you have that, you can expand it into a list of things you want to ask each witness about and another list of areas you need to address in submissions.

Detailed lists of questions get a bad press in legal circles. The potential disadvantage is that they may turn you into a robot – asking one question after another in a monotone, paying no attention to what the witness says. But this can be avoided with a little care and attention.

The advantage of detailed lists of questions is that they make sure you do not miss anything and allow you to plan, in detail, the order and approach of your questions. For beginners, this is particularly valuable.

You should also consider written submissions. In complicated cases, these are almost vital. In a simple case, the tribunal will get much less advantage from them. But this does not mean they are not useful. By writing down, in full, what you want to say, you will make sure you have the issues, the evidence and your arguments thoroughly worked out.

Unfortunately, you will normally not be able to complete your written submissions before the hearing starts. This is because you will not know what evidence is going to come out during the hearing. The best approach is to leave gaps in your submissions, where this evidence can be slotted in later.

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Sedley’s Laws of Documents

Sedley being The Rt. Hon. Lord Justice Sedley of the Court of Appeal.

Interestingly, Google tracked them down on the website of the New South Wales Supreme Court. It is comforting to find that some things are universal.

First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.

Second Law: Documents shall in no circumstances be paginated continuously.

Third Law: No two copies of any bundle shall have the same pagination.

Fourth Law: Every document shall carry at least three numbers in different places.

Fifth Law: Any important documents shall be omitted.

Sixth Law: At least 10 percent of the documents shall appear more than once in the bundle.

Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.

Eighth Law:

  1. At least 80 percent of the documents shall be irrelevant.
  2. Counsel shall refer in court to no more than 10 percent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.

Ninth Law: Only one side of any double-sided document shall be reproduced.

Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.

Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by:

  1. a steel pin sharp enough to injure the reader,
  2. a staple too short to penetrate the full thickness of the bundle.
  3. tape binding so stitched that the bundle cannot be fully opened, or,
  4. a ring or arch-binder, so damaged that the two arcs do not meet.
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Putting page numbers in a bundle

Putting page numbers in a bundle is a dull job – and guess what? Nobody has to do it.

Surprisingly few of those who put bundles together seem to know that modern photocopiers will add page numbers automatically. Instead, they scrawl semi-legible numbers in by hand; or, worse, they use a mechanical paginating contraption. This is a menace: it is horrible to use, because it gets ink all over your fingers, and is liable to arbitrary jams and repeats – so although it is a very dull task, you have to stay wide awake and attentive while you’re doing it, or it will go horribly wrong. And it is almost certainly running out of ink, so you have to bring it down on the page with savage force or it won’t print at all.

Reading the photocopier manual is dull, but at least you’ll only have to do it once – and ever after your bundles will be beautifully and legibly paginated. Anyway until the machine stops.

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There is no order but chronological order

Chronological order – that is to say, date order – is the only way to arrange the papers in a hearing bundle. Anything else will be confusing at best, enraging at worst.

Admittedly part of the reason why this is the best way to arrange the papers is that it is the most common way. That’s not an argument that always works: the most common way to sing is out of tune, after all, and the most common way to paint a sash window is so that the top half is jammed permanently shut. But when it comes to bundles (like deciding on which side of the road to drive), tedious conformity to usual practice is by far the best thing. The parties’ representatives will have to navigate the bundle at speed in the course of the hearing, and it is much easier to navigate at speed if you know your way around.

The one exception to strict chronological order is the formal tribunal documents – the ET1, ET3, together with any questionnaires and responses, requests for additional information and responses to such requests. It is conventional to put these in a separate section right at the front of the bundle. Some people also put any grievances that are required to found the claim in this section, too, and that’s not a bad idea.

But after that, resist any temptation to subdivide by theme (‘investigation,’ ‘disciplinary proceedings,’ ‘grievance about photocopier incident,’ ‘disciplinary appeal’ etc). Just arrange all the documents in the order in which they were written.

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Bundling witness statements

Witness statement should not be put in the bundle of documents.

There is a theoretical justification for this, but the main reason is convenience. ((The theoretical justification is that witness statements are a form of examination in chief, not documentary evidence.))

Witnesses will often be referred to documents in the bundle and when making submissions about witness evidence you will often move from the statement to the documents it talks about.

If the documents and statements are in the same bundle this involves a lot of flipping back and forth. Much easier to be able to keep the statement open in front of you while thumbing through the documents.