Avoid confusing a judge on evidence with good court bundles. Senior Magistrate, T. Deosaran of the Tshwane Magistrate’s Court (formerly the Pretoria Magistrate’s Court) states:
“A neat court file, where all pages are fully and conveniently accessible, helps a court to quickly and thoroughly grasp the issues and to deal with a matter accordingly.
Judicial officers deal with large numbers of files per day. It does not help if a file is not in order. Proper indexed and paginated court bundles are therefore vital to avoid confusing the judge.
What are the problems that judges experience with indexing and pagination of court bundles?
Senior Magistrate T Deosaran identified the following major problem areas:
- the failure to index and paginate the court file at all;
- incorrect page numbering;
- the neglect to redo the index and to re-paginate the papers for trial;
- the undesirable and unacceptable practice to staple/bind individual bundles together into one large bundle;
- irrelevant documents filed on the court file; duplicate papers;
- inappropriate binding methods;
- bundles exceeding the maximum prescribed page count;
- personal comments and annotations on court documents
Why would this present a problem?
Index and pagination not done at all
If the court file is not indexed and paginated on the date of the hearing, the judge will not hear your case. The judge will then strike it from the roll. The consequence of this is first, the party that failed to index and paginate the court documents, runs the risk that the other parties involved ask for a punitive cost order against you. Second, it would be complicated to explain to your client why it got struck from the roll. Thirdly, you may end up having to pay the wasted costs, and finally, you may lose your client.
Incorrect page numbering
When the page numbering is incorrect, or you bundle the documents in an unmethodical order, valuable court time is wasted by scrolling through numerous pages to search for a specific document referenced in argument, examination or cross-examination. You can avoid confusing the judge by
- ensuring that only one set of numbers appear on a page: remove old numbering before renumbering the pages;
- referencing the index consistently to the new page number instead of using the old page numbers for some part of the index, and the new page numbers for other parts thereof;
- making sure you’ve reference the correct page number. Do not reference the old page number or a complete incorrect page;
- ensuring that the page number of the e-bundle correspondents exactly with the page number of the hard copy. If the pdf-page number does not correspond with the old page number reflected on the document itself, the parties involved with the hearing must scroll through each page to reach the relevant one: it is both confusing and time-consuming to work through bundles like these;
- meticulously ensure that the page numbering is clear and corresponds with the index;
- bookmark and hyperlink each item of the index to the relevant page of the electronic court bundle allow for ease of reference and better navigation.
Fail to redo pagination before a trial
One of the golden rules of indexing and pagination of court bundles is only to include documents that are relevant to the purpose thereof therein. When you’ve prepared the court papers for a motion, and sometime later the matter is set down for trial, the documents that were not relevant for that specific motion (and thus excluded from the motion bundle) may be of importance for the hearing. Therefore you must include these documents in the trial bundle. Further bear in mind that the content and format of a motion bundle differs from that of a trial. Resultantly the sequence and page number that a document may have had in a motion bundle will vary from the sequence and page number that it should have in the appropriate trial bundle.
Bind everything into one giant bundle
Depending on the rules of the relevant forum you litigate in, motion proceedings and trial (action) proceedings require different bundles. As a rule of thumb, the different bundles’ group documents of the same class together. Thus, with trial (action) proceedings, create groups for pleadings, notices, pre-trial minutes, and other documentary evidence like correspondence. For motion proceedings, create groups for affidavits and additional documents.
Although the courts understand that practitioners are concerned that registrars may misfile one of these groups of documents, resulting in the judge striking the matter from the roll, you may not bind the bundles into one giant bundle. The judge needs to conveniently and easily access the core bundles of a case to grasp the issues speedily; the judge cannot achieve this if he must trawl through thousands of pages before he reaches the relevant group of court papers.
Court files contain irrelevant documents
It may confuse the judge if the court file contains material that should not be there. You can avoid confusion by removing misfiled documents from other matters, from the court file, and returning it to the clerk of the court for filing on the correct case. Do not file bundles containing evidence or exhibits on the court file: hand up these bundles on the day of the trial, only once you’ve led the evidence as part of the record.
The courts do not encourage the practice adopted by practitioners to simply file a more recent copy of the entire court bundle, as an alternative to retrieving the old bundles and supplementing it with any additional documents and papers. Practitioners who unnecessarily multiply court documents run the risk of incurring cost orders that they must pay from their own pockets. Peruse the court file before the hearing to ensure that it is in order, and contains only the required number of bundles.
Inappropriate binding methods
All the pages of the bundle must be bound in such a way that
- it does not hinder the turning of pages;
- all the writing on the pages is easily accessible (without the need to dismantle the bundle),
- the pages will stay open when resting on a flat surface so that the reader has both hands free and can take notes easily; and
- the fasteners used to bind the bundle are sufficiently permanent to remain intact and affixed to the group of documents for the lifespan of the bundle. The use of paper clips is thus not allowed.
Bundles exceeding the maximum allowed page count
You must adhere to the directive of your forum on the maximum page count of a bundle. Some forums allow you to split court bundles into volumes. Others allow a 20% margin either way to avoid the split of single documents into separate bundles.
Personal comments and annotations on court documents
You run the risk of confusing your judge if you make personal comments and annotations on court documents. Ensure that all pages are free of any annotations, comments, or markings intended to direct the court’s attention in a specific direction. Furthermore, some counsel is particularly guilty of thoughtlessly underlining text on original contracts or correspondence, before returning the brief to the attorney.
You may, however, make use of annotations that identify an annexure or exhibit, or to cross-reference a document to another bundle (for instance, the various discoveries made by different parties). When you use annotations like these, you simplify reference to a document and avoid time-consuming disputes on if the material was discovered, You do not use it to direct the attention of the court in a specific direction.
You can read the letter of Senior Magistrate T. Deosaran here.
Read our next article on how you can use technology to find a solution to these problems here.