Lawyers Told To Take Care With Electronic Bundle Pagination
09/30/2021
In the recent case of Hodgson v Creation Consumer Finance Ltd [2021] EWHC 2167 (Comm) (29 July 2021), His Honour Judge Pearce highlighted several discrepancies in the pagination of the Claimant's electronic trial bundles and emphasised the need for electronic page number references in bundles to match the number printed on the page.
He told Counsel:
“Whilst the Courts may have been willing to tolerate problems early in the COVID-19 pandemic, when solicitors were struggling with new challenges, including a lack of the traditional support from those who might assist with preparing bundles, as well as the sudden need to get to grips with the challenges of preparing electronic bundles in all cases, there has been plenty of opportunity by now to get to grips with those challenges. I repeat that most court users have done. Those who have not must realise that they are likely to be sanctioned for the problems caused by such failures.”
Three sets of bundles were produced. The first contained the statements of the case, witness statements, orders, and key documents. The second bundle consisted of correspondence in chronological order. It was the third bundle that caused the Court considerable confusion. It consisted of previous skeleton arguments plus further documents and correspondence.
His Honour Judge Pearce surmised that the contents of the third bundle could be explained by the fact that much of the contained material only came to light or indeed into existence after the first two bundles had been prepared. However, the Judge stated:
“…what cannot be properly explained (or at least justified) is the pagination of the bundles. In each case, the bundle as provided to the court started with an index. These pages were not paginated on their face. Thus, in the first bundle, when one reaches the page that bears the number 1, the electronic page number is 3, so the page numbers are for a short section two out. Later on, three pages are incorporated into the bundle containing the Schedule of Loss. These are numbered 15a, 15b and 15c. Thus when one gets to the page which bears the printed number 16, one is on electronic number 21. Thereafter the pages are 5 out. In the second bundle, the two page unnumbered index renders the rest of the bundle 2 pages different than the electronic numbering. In the third bundle, the introduction of a one page unnumbered index renders all of the other pages one out.”
His Honour went on to say that it was imperative that the page numbering in electronic bundles matched the numbering printed on the page.
This is not the first time a Judge has reprimanded Counsel for inconsistent pagination. In March 2021, His Honour Judge Cawson QC in DRSP Holdings Limited, DRSP Limited v Thomas O'Connor, Abigail O'Connor, Octax Limited [2021] EWHC 626 (Ch) said it was regrettable that no effort had been made to produce a chronological bundle. Instead, several bundles comprising of separate PDF files were prepared. These contained exhibits to various witness statements (in their original form without the documents therein being chronologically sorted), various meeting transcripts, correspondence, and certain additional witness statements. In addition, the Claimant provided the Judge with a memory stick which included Excel spreadsheets setting out each parties' disclosure. Embedded within the spreadsheets were hypertext links to some of the disclosed documents.
His Honour stated:
“The importance of discipline in the preparation of a readily navigable chronological trial bundle is all the more acute where a trial is being conducted remotely using electronic documents. I suspect that in most cases, one or more PDF files, properly bookmarked and with pagination corresponding to the PDF pagination, is likely to suffice without the use of a more sophisticated documentation presentation platform.”
Comment
It seems that all market sectors, including the legal profession, have reached the end of any grace period previously granted by customers, suppliers, and others regarding delays, shortages etc related to the Coronavirus pandemic. These judgements make clear that, given the world has lived with pandemic-related challenges for 18 months, the Courts expect all Solicitors and Barristers to have policies in place to ensure electronic document bundles are properly prepared.
