Last month in Swift & Others v Fred Olsen Cruise Lines  EWCA Civ 785 the Court of Appeal had cause to consider the judgment made at first instance in claim by passengers who fell ill with norovirus on a number of cruises in 2011. Of interest to practitioners will not so much be the decisions made on liability but the criticisms made of how the Defendant presented documentary evidence at trial.
At first instance the Defendant had produced some 25 lever arch files of documentary evidence of their checklist procedure for the cleaning regime on board ship. Not a single page within these 25 bundles was referred to in any of the witness statements submitted on behalf of the Defendant. The witnesses were not cross-examined on them and they were not referred to in closing. The trial judge was left to simply dip into them. One of the grounds of appeal was that the judge’s findings were at fault because he had not considered this evidence. Lord Justice Gross in dismissing this ground of appeal stated:
“First, as to the 25 files, it was for FOCL to decide how best to adduce those materials in evidence. The notion that the 25 files should simply be left available for the Judge to “dip into” (untutored) is fanciful. An obvious approach would have been to prepare a summary schedule, even of some length, focusing on representative highlights of the checklists. Admissions could then have been sought, submissions advanced, or questions put, on the basis of the schedule. Nothing like that appears to have been done. If it was to be done, it was for FOCL to do it.”
This raises the question: ‘How should documentary evidence be presented at Court?’. Set out below are some tips for a compliant bundle under CPR 39, the practice direction and Court guides:
- Unless ordered otherwise bundles shall be filed not more than 7 days and not less than 3 days before the start of trial.
- The bundle should only contain ‘necessary’ documents and must be easily legible. Each document only needs to be in the bundle once. Use a summary to cross reference documents referred to in a witness statement to their location in the bundle.
- Strings of emails need to be broken down with signature and confidentiality notices removed. Emails should be limited to one per page.
- Each page should be paginated and if the total number of pages is more than 100 then numbered dividers should be placed at intervals between groups of documents.
- The bundle should be contained in a ring binder or lever arch file. If there is more than one file then each should be clearly distinguishable. The type of file used should be strong enough to sustain heavy use and contain no more than 300 pages per file.
- The contents should be agreed and if not then a summary of the points on which the parties disagree should be included.