A cautionary tale on preparing electronic bundles: £20K costs awarded for unreasonable conduct in preparing trial bundle

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The recent case of Bailey v Stonewall and others (ET/2202172/2022) provides a salutary reminder of the importance of well-prepared electronic bundles.  In the employment tribunal, unlike the civil courts, costs do not follow the event. However, there are circumstances where the tribunal has the discretion to award a costs order, including where a party (or their representative) has acted unreasonably in the way the proceedings have been conducted (Rule 76, Employment Tribunal Rules of Procedure). 

In this case, carriage of the bundle lay with the (second) respondent. In the main judgment, the tribunal referred to the condition of the main bundle, which spanned over 6,500 pages, as being “exceptionally difficult to work with”. The tribunal’s view was that the bundle “seemed to have been randomly thrown together”. Specific issues with the bundle included that:  

  • Large sections of the bundle were not OCR readable.  
  • Pagination from earlier bundles had not been removed. 
  • The main index omitted very large numbers of documents.  
  • Page numbers on the index did not match the pdf documents.  
  • Pages had been inserted sideways.  
  • There was frequent duplication of the same documents.  
  • The supplementary bundle was added to more than once, with the tribunal not always being notified of the additions.  

While the tribunal acknowledged that “the process of putting together a bundle can be frustrating to one or both sides”, it concluded that the respondent’s conduct was unreasonable in the preparation of the bundle. The tribunal noted the repeated rejection by the respondent’s solicitor to “constructive suggestions and courteous requests” from the claimant’s solicitor, including their offer to “collate the documents into a single, coherent, bookmarked and indexed pdf bundle”. The tribunal’s view was that, in several respects, the conduct of the respondent’s solicitor “went well beyond normal disagreement”.  

Judicial guidance on preparing electronic bundles  

In the employment tribunal, practitioners are reminded of paragraph 24 of the Presidential Guidance on remote and in-person hearings which sets out a series of principles for electronic documents. 

In the civil courts, the Judiciary’s General guidance on electronic court bundles and the court guides of the respective divisions of the High Court supplement the provisions of Practice Direction 51O in relation to the preparation of electronic court bundles.  

How Opus 2 can support the preparation of electronic bundles 

Opus 2 Hearings supports the preparation of a fully paginated, shared electronic bundle, where all documents are uploaded into a single, connected platform through private workspaces for each party, their legal representatives and the court. Unlike a static PDF, any changes or inserts to the bundle will be dynamically updated for all users on the platform, without you having to manually update and circulate inserts or new copies of the bundle each time. Documents within the bundle that are text searchable enable specific content to be located using our advanced search and filtering functionality. The documents view on the platform acts as a hyperlinked index in order to navigate through the entire electronic bundle.  

Our dedicated client services team is on hand throughout. A Solution Operations Manager will liaise with the parties’ legal representatives to understand and meet the specific requirements of the case and handle the bundle creation on your behalf. A Case Manager will be your main point of contact for advice and support in relation to all other aspects of our hearing services.   

Read more about Opus 2 Hearings or contact us to book a demo.

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