6.7.1 Contents of the trial bundle.

Essentially the bundle should contain copies of:

(a) the claim form and all statements of case;

(b) a case summary and/or chronology where appropriate;

(c) all requests for further information and the answers;

(d) all witness statements and summaries to be relied upon;

(e) any hearsay notices;

(f) any notices of intention to rely on plans or photographs;

(g) all experts' reports and written responses to questions;

(h) any order giving trial directions; and

(i) any other necessary documents (e.g., relevant correspondence and original documents).

The bundles should be continuously paginated throughout and indexed with a descrip­tion of each document with its page number. If any documents are in manuscript and likely to be difficult to read then a typed transcript should follow immediately after the document. If the bundle exceeds 100 pages, numbered dividers should be used between groups of documents. The documents should normally be contained in lever-arch or ring-binder files. If there are a lot of documents, it may be helpful to separate them into different coloured files for ease of reference by the judge and witnesses who need to refer to them when giving evidence.

6.8 Skeleton arguments.

In a case of any complexity the parties will be ordered to exchange and file 'skeleton arguments' identifying the true issues, the propositions to be advanced, the authorities to be cited and if appropriate a chronology of events. These hardly matter, of course, in a straightforward road accident case. In cases of any complexity, however (especially in commercial disputes), a detailed chronology—for example, reciting the different stages of changes of shareholding or directorships in a web of interlocking companies—can be invaluable in enabling a judge to see the issues clearly. Naturally counsel's assist­ance will be called upon for him to identify the issues involved and the propositions of law and the authorities which he proposes to cite, and so if any such order has been made at the case management conference one will have to stay closely in touch with counsel about this at the relevant stage.

6.9 Final negotiations.

As the case approaches its final stage it will become clearer whether or not it is indeed going to be seriously defended. Of course, insisting on the strength of your defence and leaving offers or further offers until very late in the day is an obvious tactic in negotiations. A defendant must weigh up the mounting costs of this 'last ditch' bluff against his knowledge of the probably rising anxiety of a claimant whose (in personal injury cases, and sometimes in business disputes) whole quality of future life will depend on the outcome. As we have already remarked, this is what gives defendants a tremendous psychological advantage in personal injury cases since the real defendant, being a large insurance company, does not have anything like as personal a stake in the outcome of such cases. Nonetheless, the defendant's insurer's solicitors will have to consider to what degree the costs are rising in proportion to the amount at stake in the claim itself.

In very large claims substantial amounts can be risked on bluffing until the very last stage in order to take advantage of any faltering in the claimant's determination. In more modest claims the costs of going to trial represent a very considerable proportion of the global costs of settlement, and therefore defendants are likely to put in their true final offer somewhat earlier. Payments into court can still be made, and take effect, even very late in a case; and although by then the point of a gamble is rather less pressing on a claimant, if the trial is likely to be long, or expensive in terms of the number of expert witnesses, any payment in is not a matter lightly to be disregarded. Negotiations direct between the parties may therefore become particularly intense in the immediate pre-trial stage.

It may be that after a meeting of experts a joint meeting will be arranged. It may even be the case that counsel is involved in these meetings. Even if counsel is not formally involved there may be some interchanges between him and his opponent in the immediate pre-trial stage about the way in which the case is to be formally presented for convenience between them, and at which possible offers of settlement could be discussed. This may be particularly important if, as is regrettably sometimes the case, the solicitors for the claimant and defendant appear to be no longer taking a detached view of the case, so that the interposition of a more objective viewpoint helps the true issues to emerge. The negotiation position may also change because of new evidence coming out very late in the case. The exchange of witness statements in particular will already have been an important point at which one or other party sees that his case is somewhat weaker than he has supposed. Similarly, the precision with which a claimant can prepare and serve a schedule of past and future losses may make the defendant see that the apparently outrageous figures being claimed in earlier negotiations can perhaps be substantiated at trial by hard factual evidence.

When negotiating for a claimant at a late stage, it is naturally imperative to give the impression that he is now happy to press on with the trial and let the court decide. Any degree of hesitancy is likely to be seized on by the defendant. In the case of a defendant, then, ideally a payment into court which is relatively close to the likely award should have been made at the earliest stage, thus putting the claimant at risk for as much as possible in the way of continuing costs. If new evidence has emerged which makes the claimant's claim seem stronger or bigger than had previously been thought, it is as well to make a further payment in late on if the defendant hopes to get out of the action without the costs of trial. An alternative, albeit brinkmanship, tactic (as is well known) is to wait to make that final offer at the courtroom door, when the claimant's nervousness at the ordeal of giving evidence, as well as at the gamble involved, may be at its peak.