By Kyle Squire – 27th June, 2020
“Bundles” are often referred to during court hearings, but what are they?
The court bundle is, literally, a bundle of documents. In previous versions of the procedural rules for civil cases (i.e. those outside of the Court of Protection) it was explicitly said to be a ‘bundle of documents’ – though that seems to have fallen out of use in subsequent revisions of the rules.
Historically – at least since the eighteenth century – and still sometimes to this day, they were sent by solicitors to barristers wrapped in pink ribbon or tape. Nobody knows anymore exactly why pink ribbon or tape was used – but it was probably a faded red originally and it’s this that led to the term ‘red tape’, meaning an excessive number of rules and regulations before an action can be taken.
In modern pre-Covid times, the bundle would almost always have been prepared and sent to the court and advocates as a hard copy lever-arch file (or several such files) of all of the documents relevant to the hearing for which it was prepared.
For remote hearings, the bundle is now usually a PDF (or set of PDFs) sent to each of the parties and the court. These may be referred to as e-bundles, but they are really just a PDF of the documents. Sometimes they are sophisticated and interactive (being able to click on links to navigate more easily), but other times they are the pages simply scanned into a document.
It has been a steep learning curve for many lawyers to get to grips with electronic bundles and remote working. I have moved from working on a single laptop with hard copy bundle and notepad (in the physical courtroom) to two laptops (one for the video conferencing platform, and the other for notes and to work from) and a tablet (to be used in place of the hardcopy bundle). It is near impossible to successfully use one screen to see the participants, your documents and your notes at the same time. At the start of Lockdown, some judges were unable to access e-bundles because of outdated technology, but in my experience, most are now able to access bundles electronically.
That being said, there are benefits to remote working and e-bundles. It enables you to work in ways you previously could not: rather than each working your way through separate documents, you can share documents on the screen. As an advocate you can more easily see your clients and co-advocates and their reactions (and pick up on facial cues which shows they may not be following your point). Not having to lug around several thousands of pages also does wonders for your back!
If you observe a hearing you will see the lawyers and the judge looking through lots of paperwork, either in lever-arch files or electronically. Most remote hearings begin with one of the lawyers checking with the judge that the relevant documents have been received from all the parties – often you will hear that they have only been emailed through the day before, or even on the morning of the hearing.
The bundle can be a boon or a bane. Prepared properly, and delivered promptly, it can help a hearing run like clockwork: it contains all the relevant documents and omits the irrelevant; organised in a logical manner and properly paginated. Prepared poorly, it has the ability to entirely derail a hearing, and certainly make it much more difficult to navigate.
Practice Direction 4B
The preparation of bundles in the Court of Protection is governed by Practice Direction 4B of the Court of Protection Procedure Rules 2017. The general rule is that it is the solicitor for the applicant (that is, the person who brings the proceedings to court) who is responsible for preparing the bundle. This is a challenging job, so when the applicant is the person who is the subject of the proceedings (the person who lacks, or may lack, capacity to make important decisions, “P”), it will be the first respondent who is responsible for the bundle. (A ‘respondent’ is one of the people or bodies who is a party to the proceedings but who did not initiate the proceedings and is therefore responding. Note that there is no ‘defendant’ in Court of Protection proceedings: they are rather ‘respondents’.) That being said, a good bundle will be the result of cooperation of the parties and an index should be agreed in advance.
What’s in a bundle?
What would you expect to see in a bundle? The short answer is any documents which are relevant. In the Court of Protection those documents generally include (as set out in the Practice Direction 4B):
(a) preliminary documents;
(b) any other case management documents required by any other practice direction;
(c) a time estimate;
(d) applications and orders including all Court of Protection forms filed with the application;
(e) any registered enduring or lasting power of attorney;
(f) any urgent or standard authorisation given under Schedule A1 of the Mental Capacity Act 2005;
(g) statements and affidavits (which must state on the top right corner of the front page the date when it was signed or sworn);
(h) any care or support plans (where appropriate);
(i) experts’ reports and other reports; and
(j) other documents, divided into further sections as may be appropriate.
You may hear reference to ‘preliminary documents’ and, as you will see from the list above, they are the first section of the bundle. ‘Preliminary documents’ are documents which are prepared in advance of each hearing, and are updated for each hearing, by the legal representatives of the parties and usefully summarise the facts, issues and arguments. They are not documents produced by the court, or evidence in the case (as would be the documents which fall into the remaining sections of the bundle) but are really a tool of advocacy, for the lawyers to set out their arguments in advance, and to help organise the hearing and help the judge focus on the important issues. Practice Direction 4B includes a lengthy list of what constitutes the ‘preliminary documents’ but, for the purposes of an observer, the most important are likely to be the ‘case summary’, ‘position statements’, ‘skeleton arguments’ and ‘draft order’.
- A ‘case summary’ is a document usually prepared by the applicant, which should do what it says on the tin – summarise the factual background in a non-contentious manner, set out the litigation history of the proceedings, and summarise the issues to be determined at this hearing, and more broadly within the proceedings.
- ‘Position statements’ are short documents prepared by each party ahead of each hearing which set out their position in respect of the issues. So, for example, one party may say in their position statement that they believe there is enough evidence to make an interim declaration that the person may lack capacity and the other party may say that they do not think there is sufficient evidence to do so. Or one party might take the position that P should be supported to return home from a placement, while the other party might take the position that this is too risky and P might come to harm if she returned home. In many hearings there is substantial agreement between the position statements, but the judge will focus on remaining areas of disagreement and make decisions about those.
- The peculiarly named ‘skeleton argument’ (which is usually anything but skeletal) is intended to set out the basic arguments which will be made in respect of issues at a hearing. It will not be prepared for every hearing, usually reserved to those where there is a substantive argument to be had on a matter, and there is benefit to setting out a road map to that argument in advance (this is often helpful both to the judge, and to all the advocates). Parties will ‘exchange’ skeleton arguments. It often comes as a surprise to observers that an argument will be set out in advance of the hearing, so that it can be anticipated and responded to by the opposing lawyers: gone are the days when parties would be ambushed by arguments. In a jurisdiction like the Court of Protection it is recognised that getting the right answer is much more important than winning by all means. The points made in the skeleton argument will be amplified in oral submissions (i.e. talking in court) by the advocate.
- The ‘draft order’ (in most Court of Protection hearings) is a document which is prepared by the applicant, but with input from the respondents, and is at its heart a list of decisions that the parties want the judge to make, e.g. a declaration that P lacks capacity, that it’s in P’s best interests to be deprived of his liberty in placement X, that he should have limited contact with person Y and so on. During case management hearings (that is, those where the judge has to decide what evidence is needed and what enquiries need to be made to get the case ready for final determination), observers may see that discussion about this draft order often takes up a lot of the time in Court. Once the judge has made decisions about the wording and any disputed issues it becomes the order of the court.
Observers attending hearings can ask to see copies of the ‘preliminary documents’ – though there is considerable variation as to how likely they are to be provided in practice. It is worth asking for them because they help tremendously with understanding what a hearing is likely to address and assist in following the hearing much more easily (even in the absence of the full bundle). If you are not able to get them in advance, it is worth asking at the end of the hearing, or in a follow-up email, whether you can get them then.
The term ‘order’ can sometimes be confusing because it can be used for a number of things. An order is an imperative statement by a judge compelling a person or body to do something. It has the force of law and its breach can result in sanctions being imposed by the court. In the most significant of breaches of an order, the sanction can be a person’s imprisonment. You may sometimes hear the phrase ‘order’ (used in this sense), used interchangeably with ‘direction’. There is no hard and fast rule about this, but ‘direction’ is more frequently used when something procedural needs to happen (e.g. “the local authority must file and serve a final care plan”), whilst ‘order’ is used for the substantive decision (e.g “it is in P’s best interest to live at placement Y”). However, the term ‘order’ will often also be used to refer to the document which records those directions, and so you may hear advocates or the judge referring to a ‘draft order’, as set out above.
The Transparency Order is a type of order (for more see here – by Celia Kitzinger). Within the bundle, the Transparency Order will usually be found in section (d) ‘Applications and Orders’.
In a lot of hearings, contrary to popular television dramas, many issues will have been agreed by the parties in advance of setting foot inside a court room (be that virtual or physical) and the parties will have prepared a draft order setting out those agreements, and the directions the court will be invited to make. Where there is dispute, the judge will then make a decision and those decisions will be documented in the order, with the lawyers usually being expected to agree the terms of the wording based on the decision the judge has made. However, the order is always ultimately the responsibility of the judge, so even if the parties agree on a matter, the judge may disagree and change the orders they make.
One of the most significant problems with bundles is often their length. They will sometimes include far more material than is relevant to the hearing, or will be referred to in the hearing, ‘just in case’. The bundle is usually prepared by solicitors, yet in the Court of Protection it will often be barristers and the judge who are using the bundle during the hearing. Many are prepared extremely well, and there will be discussions between the respective solicitors and barristers as to what should go into the bundle. However sometimes a cautious approach is taken with bundles being produced which are extremely lengthy, leading to additional time being taken by judges having to read documents which are not relevant to the matters before them. There have been more than a few cases where judges grumble about this.
A bundle of laughs?
That leads me on to the final word on bundles. A note on bundles could not be concluded without sharing ‘Sedley J’s Laws of Documents’: the universal laws which are experienced by all advocates when faced with a poorly prepared (physical) bundle:
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.
- At least 80 percent of the documents shall be irrelevant;
- 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:
- a steel pin sharp enough to injure the reader,
- a staple too short to penetrate the full thickness of the bundle.
- tape binding so stitched that the bundle cannot be fully opened, or,
- a ring or arch-binder, so damaged that the two arcs do not meet.
‘Bundle’ may be a foreign term and may seem daunting at first but it means nothing more than paperwork: something we are all familiar with and work with in our day to day lives. It can take a while to get used to the different types of documents in a bundle, and as an observer you will rarely, if ever, have to get to grips with it all. However, if you do intend to observe hearings it is really worth asking for it and reading whatever you are sent in advance. It will help you understand what the case is about and what the issues are for each hearing. It will all begin to fall into place after a while!
Kyle Squire is a barrister at 5 Pump Court Chambers and regularly appears in the Court of Protection and family courts. He has a keen interest in matters where the two jurisdictions intersect. He writes regularly about cases from the Court of Protection and blogs independently at www.mentalhealthbarrister.com.
He tweets @Kyle_Squire and can be contacted at firstname.lastname@example.org.