costs – #RemoteAccessBar

A judge makes the point I’ve been dying for someone to make about bundle page numbering: make the numbers match. Or suffer the (cost) consequences.

Thank goodness.

There are many bundling crimes which we’ve now become tediously used to since, in March last year, the world caught up with those of us at the Bar who’d already gone paperless.

Now a judge in Manchester – may he be blessed! – has tackled one of the more aggravating ones head on.

It’s page numbering. Yes, I know. Boring. Pernickety. The usual head-of-pin barrister small-mindedness.

If you think this, you’re wrong. Ask yourself how many hearings you’ve been through uttering the litany: “That’s page 47 on paper, my Lady, but page 54 in the PDF.” And waiting while someone, unerringly but understandably, goes to the wrong page. Over. And over. Again.

Thing is, it isn’t hard to get the numbering to match up. As long as there aren’t any last-minute additions, in fact it’s child’s play. In Adobe Acrobat, you can easily make (say) the index pages – and yes, the biggest single crime is forgetting to number the index pages as i-ii-iii, kicking off the actual substantive bundle at page 1. (Open the page thumbnails sidebar down the left hand side of the main window. Click on the menu icon just below the words “Page thumbnails”. Choose “Page labels…”. Pick your page range, select roman instead of arabic numerals, and you’re done.)

In PDF Expert, that isn’t an option – but instead, why not simply start page 1 with the first page of the index, instead of having it in a separate document? (On which subject: separate indexes are the spawn of Satan themselves. One document, please. Including the index. Just the one.)

I won’t go into online bundling services, but frankly if they don’t do this already, they should do. Pronto. (I’ve come to love Casedo, but its page number doesn’t have the option to include its own self-generated table of contents. It really should.)

Even adding pages isn’t too hard (eg “280a, 280b” etc). At least in Acrobat – you can do exactly the same thing. Add the extra pages. Then choose them in the range. Make the starting page the prefix (so “280” in this example). Choose “a, b, c…” from the dropdown. Away you go. Done.

So as HHJ Pearce says in Hodgson v Creation Consumer Finance Ltd, there really isn’t any excuse. The courts – from the Supreme Court down – have said for some time in guidance that this is how they want pagination to work.

And yet I can’t offhand remember a single bundle I’ve been sent by an opposing party (I do my best to work with my solicitors to get it right) that has complied.

The next time, I might be tempted to take a point on it. Using the following from HHJ Pearce at [14]:

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.

Costs argument here I come. And I doubt I’ll be the only one.

I mentioned other electronic bundle crimes.

The biggest, of course, is the failure to make the text searchable. ReadIris or Acrobat will usually solve that, but not always.

A close second is the delivery of documents in multiple emails, with further nested emails, instead of in a single PDF bundle: I’ve now taken to including time for putting that together into my fee estimates.

There are myriad others. But honestly: as HHJ Pearce says, we’ve been at this a while now. If a single paper bundle was doable in the past, a single properly-prepared PDF bundle should be doable now. I don’t really think, for professional court users, that there are any excuses left.

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With less than a week to go before new rules on witness statements in commercial litigation come into force, the problem remains: do lawyers know how to ask questions?

Short thought: I’ve written before about the problem of malleable memory, and the fact that from 6 April onwards witness statements for commercial trials will need – explicitly – to take that into account. (That’s thanks to Practice Direction 57AC, for nerds like me.)

It’s how litigators will need to do that which I find interesting. And it gives rise to a concern: do lawyers still know how to ask questions?

Simply in posing the question, it sounds ludicrous. I’m a barrister. Asking people stuff is what we do, isn’t it?

Well… up to a point.

Here’s the problem. PD57AC says commercial trial witness statements have to be in the witness’s own words, as far as possible. They need to be made with reference to documents only where it’s essential. They need to be limited to witnesses’ own experience and recollection.

And – critically, for the purpose of this post – they need to be made through a litigator interviewing the witness:

As far as possible without asking leading questions, and definitely not when covering the really critical and contentious areas;
Sticking to open questions; and
“Recorded as fully and accurately as possible, by contemporaneous note or other durable record, dated and retained by the legal representatives.”

This is the point at which barristers who spend their time on crime and family matters laugh to the point of nearly passing out. They’re the ones for whom examination-in-chief, where you tease out your own witnesses’ stories one open question at a time, is a daily stock in trade.

But for civil practitioners, who’ve only ever asked a handful of open questions in supplementaries or re-examination and otherwise spend their lives cross-examining, this is baffling; a dimly-lit throwback to half-remembered advocacy classes in Bar school. I suspect it may be even tougher for solicitors, for whom this kind of questioning has never been exactly a core job skill.

Because let’s be honest. Drafting witness statements doesn’t happen as described above. Leaving aside the habit (which the Practice Direction makes clear it deplores) of using witness statements as a sort of pre-skeleton, full of argument and comment on documents and citation of authorities, even a straightforward narrative is (more often than most would care to admit) drafted by a solicitor from the documents, and then signed off by the client. And in particular the process of honing the draft to finality bears very little resemblance to what the Statement of Best Practice appended to the Practice Direction starkly requires: that it be

done by non-leading questions for the witness to answer in their own words, and not by proposing content for approval, amendment or rejection by the witness.

Like my crime friends, this doesn’t bother me. I’m fortunate that a decade as a reporter and another decade as an investigator has left me entirely comfortable with open questioning: letting a witness tell their tale in their own time and words, looping back into points of particular interest with more focused (but still open) enquiries and then expanding the view back to wide-angle as the need arises.

I do recognise this isn’t normal for many people – and I suspect some may struggle. Not because they’re anything other than fantastic at their jobs. But because this is hard. It takes focus, and time, and a lot of practice. Anyone who remembers Bar school will recall early struggles to master questioning styles, and the frustration of being unable to sustain a coherent line of enquiry without slipping into yes/no or leading the witness.

So if the Courts take this change seriously – and judges already punish witness statement malefactors with costs sanctions – we’re going to have to change our ways.

Here’s a final irony. There’s actually a group of people who are rather good at this. They’re called police officers. Not all of them, of course. But UK police recognised long ago that interviewing where you actually wanted to find out what happened, rather than seeking to satisfice by getting just enough to stand up the case against the person you just know done it, is a tricky and technical business. Starting with the PEACE method and moving onto cognitive interviewing, the best police interviewers are examples of what the Practice Direction requires. We lawyers could do worse than to ask them for help.

(Footnote: I had the jab yesterday. And as a result I’m feeling somewhat under the weather – headache, shivers, temperature. Nothing major, but I apologise in advance if Friday’s piece ends up just being a linkfest.)

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)