The Court of Appeal has fired a warning shot to practitioners preparing bundles for hearings and it seems that failure to heed this warning could result in a significant costs penalty, or worse, to the parties.  

The risk was made clear by Lord Justice Lewison in his postscript comment in Parr v Keystone Healthcare Ltd & Ors [2019] EWCA Civ 1246 that "parties can expect that the cost of preparing a non-compliant bundle of authorities is at risk of being disallowed."   In a large scale litigation, this could amount to a very significant sum. 

His comments came hot off the heels of the High Court's frustration over the bundle prepared for the trial in White Winston Select Asset Funds LLC & another v Mahon & another [2019] EWHC 1381 (Ch).  The Court was presented with a trial bundle comprising 35 lever arch files containing more than 8,000 pages.  Of this, approximately 400 to 450 pages were referred to at trial.  This fuelled the Court's view that the scale of the litigation was completely out of proportion with the sums at stake and it warned that its impact would be felt not just in costs but also in the Judgment on the trial.

It is becoming increasingly clear that whilst a good trial bundle may not win a case, a bad one may do serious damage.  Great care should, therefore, be taken not only to the production of the bundle itself, but in the formulation of its contents to ensure that it is fit for purpose and not wasteful of the parties' and judicial time.  For further commentary and guidance on how to avoid potentially costly pitfalls in the preparation of hearing bundles, do take a look at our suggested practical approach to trial bundling.