President of Employment Appeal Tribunal gives guidance on bundles

It is in general unacceptable for parties to fail to co-operate over the contents of a bundle, the President of the Employment Appeal Tribunal has warned when giving guidance for future cases.

In Smith -Twigger v Abbey Protection Group Ltd (Maternity Rights and Parental Leave) [2014] UKEAT 0391_13_0204 Mr Justice Jangstaff said that at the outset of the appeal he had been faced with having to consider two separate bundles, one prepared by the respondent and one by the appellant.

Revealing that both parties had “rightly apologised” and that he had accepted those apologies, the President said: “I want to make it clear to those who read this judgment with an eye to future cases that it is in general unacceptable that the parties should fail to co-operate over the contents of a bundle.

“It imposes significant difficulties for the staff of this Tribunal. It can create problems for judges and, in particular lay members, in negotiating bundles, particularly where skeleton arguments reference separate bundles, giving different references.”

Mr Justice Langstaff said the parties were obliged by the Practice Direction and by order to agree a bundle. “If there is any dispute between the parties, then the view this Tribunal will generally take is that is for the claimant to lodge a bundle which contains the core documents that are identified in the Rule and Practice Direction.”

He added: “If there is any disagreement about what should be contained thereafter, it will normally be because one party or the other objects to certain further documents being bundled.

“There are limits to the number of documents which are likely to be relevant to an appeal. These are set out in the Practice Direction. Within those limits, the claimant should, in preparing the bundle, ensure that those documents which the respondent wishes to rely upon are contained in the bundle, by addition if need be, even if the claimant thinks the suggestion is not appropriate. The bundle should not, however, exceed the limits stated in the Practice Direction without the approval of this Tribunal.”

Mr Justice Langstaff said: “If it turns out that documents are unnecessarily added, and following these observations are accepted by the appellant, though under protest, then if any additional expense is caused to the claimant or, as it may be, the respondent, that can be capable of founding the basis for an award of costs and the parties are reminded they might be at that risk.”