In Re TPS Investments (UK) Ltd, HHJ Hodge QC, sitting as a High Court judge and considering a short and uncontested insolvency application in the Manchester Business and Property Courts Insolvency and Companies List, noted that “… there is nothing usual about the present times”. In his judgment, he offered valuable guidance of how courts and practitioners might adjust to the new requirements for electronic bundles introduced by the COVID-19 crisis.
The key points of the judgment were that:
- Only documents essential for the hearing should be included within the electronic bundle.
- Bundles should contain a searchable index, or, at a minimum, be paginated throughout.
The usual source of guidance for production of an electronic hearing bundle is at paragraphs 24 to 26 of Practice Direction 32, which was updated in March 2020 to provide general, albeit brief, guidance on electronic bundles. This has been supplemented by individual courts, such as the Supreme Court Electronic Bundle Guidelines, and the COMBAR Guidance Note on Remote Hearings, as well as the guidance provided by the Lord Chief Justice, Master of the Rolls and the President of the Family Division on 9 April 2020. Parties should always refer to the guidance of the relevant court where this has been issued. Additional guidance on the production of PDF bundles has now been provided at section AA of Volume 1 of the White Book 2020, although this must defer to the specific direction or requirements of the tribunal or court.
As HHJ Hodge pointed out, parties should now expect that hearings will now be conducted with some or all of the participants attending remotely. This requires thought to be given to the practicalities of ensuring that all parties are working from the same bundles, which can be easily accessed and navigated remotely.
Even so, parties should also expect longer hearing times; the judge noted that the uncontested application in TPS Investments, listed for 30 minutes, would ordinarily have been listed for half that time. Not only will allowance need to be made for the technology itself, but locating references on an electronic bundle will not always be quicker than using a hard copy bundle; not all courts or participants may have access to a second screen, for example. Parties should, too, consider the practicalities of needing to take instructions in the course of a remote hearing, which may not be as swiftly or easily obtained as in person.
Documents essential for the hearing
In TPS Investments, the judge referred to the guidance produced by the Business and Property Courts in Manchester, and the provision within in it for “essential” documents only to be provided within an electronic bundle. Parties must be mindful of the need to reduce the volume and scope of documents included within a hearing bundle, and of the additional difficulties facing a judge who must prepare for a hearing with a “user-unfriendly” electronic bundle.
The judge suggested that restricting the bundle to essential documents only would require earlier instruction of counsel, and certainly for counsel to be briefed with sufficient time to advise on the contents of the electronic bundle. This will not always be possible for more urgent applications, but solicitors should factor in additional time when instructing counsel for a remote hearing. A focused review of the bundle at an early stage will certainly save time and expense for the parties as well as for the court.
The need for an index
In TPS Investments, the judge had not had the advantage of an index, nor of a paginated bundle, which made it impossible for the court to identify any particular document by a number within the PDF file. The need for a searchable index is critical to assist the court. If this is not possible, then the bundle must be properly paginated to enable the reader to scroll through the PDF file to identify documents. This will be particularly important, if, for example, the parties have not been able to provide a hearing bundle that is a searchable (optical character recognition, or OPR) PDF file. Where parties do not have access to the most sophisticated software, they should consider how they might otherwise make a hearing bundle as user-friendly as possible for the court where multiple screens or printing facilities may not be available.
Remote hearings will require additional time to prepare, including and especially the production of a streamlined and user-friendly hearing bundle. Parties should take care to consider all of the practical difficulties facing both parties and the court, and to allow themselves additional time to prepare for such hearings.