Exhibits and Trial Bundles in Civil Litigation
Introduction
Every advocate, who has been involved in civil litigation in the Civil Courts in Uganda has probably been accustomed to the practice of filing trial bundles and reliance on the contents therein as exhibits in support or defense of their respective client’s cases.
For some, it has worked out well and for others, they have been faced with numerous challenges, all arising out the level of legal knowledge of the procedure available to them regarding documentary evidence/ exhibits, the level of preparation for the trial, level of experience, the complexity of the matter, the volume of documents and ultimately their litigation strategy if any, as counsel for either of the parties.
Ultimately, lessons have and continue to be learnt with more participation in litigation and we become better and wiser, through publications like this one, mistakes that we make during the litigation, the experience we amass over time. Publication of this nature offer us an opportunity to share the experiences and possibly better our understanding of perfecting our litigation strategies and avert the adverse impact that may come with wrong litigation strategies in this area of exhibits/ trial bundles.
Reflection on our General Litigation Practice
We should, as advocates, possibly be alive to and reflect on the sentiments expressed by judicial officers on the inadequate preparation by counsel and careless drafting and presentations during litigation. In HCCS No. 146/2017 Wagabaza Valantin (Suing through next of kin Wagabaza God) versus Olira Charles & Others, Hon. Justice Bukirwa Shamilla noted that;
“Before I take leave of this matter, I must state that the plaint was negligently drafted, it’s tainted with careless mistakes. Paragraph 1 of the plaint shows that the Plaintiff’s address of service for purposes of the suit is C/o Firm F & Co. Advocates P.O Box 7117, Kampala. From my understanding, Firm F & Co. Advocates is a firm name at the Law Development Centre and indeed the Postal address belongs to the Law Development Centre. This is a clear indication that counsel for the Plaintiff copied and pasted from precedents used by students at the Law Development Centre, which is not a good practice. Advocates are paid by their clients and should therefore dedicate adequate time to draft their client’s pleadings with reasonable care in order to avoid such mistakes that cause embarrassment to the legal profession”.
The pitfalls in our litigation strategies and the manner in which we draft pleadings and file documents has attracted further feedback from courts. A typical example is the decision of the Kenyan High Court in ELC No. E046/2021 Kero versus Chief Land Officer. The Judge noted at the beginning of his ruling;
“Some pleadings and actions of the parties are so bad that it pains the court when going through them and it wishes that they were never filed or done respectively. Actually, they depress the court, and that is not health at all. In my humble view, pleadings in form of the application before me and the supporting affidavit and even the ground of opposition thereto were so poorly drawn that they do not pass for those drawn by a qualified lawyer. In my humble view, if it were possible, all law schools in the country should take hold of and use them as teaching aids in Civil Procedure classes so as to remind students of what they should do in drafting pleadings.”
The Judges are generally commenting not only on the manner of drafting pleadings by advocates but the general level of carelessness and inadvertence, with which we, advocates deal with client’s matters including preparation and filing of trial bundles. It is therefore my hope that this publication and the experiences shared shall improve litigation skills on one way of another and inform future litigation practice, in the matters we are handling or might handle in the course of time.
The Pre-Litigation Preparation and the Pleadings
Every successful litigation commences with a properly guided interview with the client and possibly the potential witnesses before the preparation and filing of pleadings. It is during the interview that counsel is able to identify the relevant documents that support the client’s intended suit or defence to the claim.
As part of the litigation strategy, counsel should gather from the client the relevant documents and confirm the availability of such documents. Counsel should guide the client on the relevant documents and should not leave it to the client to determine, which documents to present to counsel, otherwise very critical and sometimes adverse documentation may escape the attention of counsel. This may impact on the pleadings and subsequently on what documents are set out in the Trial bundle and tendered as exhibits.
An inadequate interview and the failure by counsel to guide the client and obtain all the material documents is the cause of incessant applications for amendments, filing of several uncoordinated supplementary trial bundles, some during the course of hearing and some as annextures to submissions. Some of these documents may be rejected by court, especially if they are belatedly being adduced in evidence and were not even listed in the list of documents as required by Order 6 Rule 2 of the CPR. Once rejected, the claim or defence may be materially and adversely affected.
The next litigation strategy is need to peruse the documents and ascertain if the originals of such documents are in the possession of the client, and if not, where to find them, given the rules of evidence that require primary evidence by way of original documentation. Any omission to do so may turn out to be catastrophic at the trial where the Court upholds an objection to admissibility of photocopies of such documents. Advocates and clients get disorganised where they filed trial bundles with photocopies of documents, and at the trial cannot trace the original documents. This is a mistake made at the time of the interview and filing of pleadings. It’s normally delayed reaction and may collapse a good case.
Additionally, it is one thing to gather and obtain all documents from the client and another to determine which ones are relevant to the claim or defence. Sometimes, we, advocates are too busy and draft pleadings, file them, together with annextures which we have not read and internalized. Sometimes we delegate to legal assistants, without guiding them at all and file without any further scrutiny. These are documents we end up including in trial bundles, some of which are adverse to our client’s case. It is not uncommon for advocates to include so many documents in their trial bundles and end up with no witness referring to any of them, simply because their relevancy was not tested before filing.
Of late, there have been many suits struck out on account that the dispute is the subject of a binding arbitration clause or agreement and should have been preferred before an arbitral tribunal. Sometimes, the arbitration clause has been so clear that you wonder how it escaped the eye of counsel. Counsel’ concentration was probably more about confirming the parties to the agreement, the obligations and rights of his client and hurriedly filed the suit, without reading and internalising the entire agreement. Again, such parties have not even reached the stage of filing trial bundles.
The next course of the litigation strategy are the pleadings and annextures thereto. It is a requirement for example under Order 7 Rule 14 that the document (s) upon which the Plaintiff’s claim is founded must be attached and filed with the plaint. There are adverse consequences of failure to attach the core documents to the pleadings. The suit may be struck out for want of locus, if the locus had to be founded on such documentation. Examples include; Letters of Administration, Grant of Probate, Power of attorney, Agreement if the cause of action is breach of contract, marriage certificate if the action is for divorce, etc. See Fakrudin & Anor v Kampala District Land Board & Anor (Civil Suit No. 570 of 2015) and Ugafin Ltd. Vs. Kiwanuka HCMA No. 682 of 2014 (Land Division). The strictness of the rule is to avert false documents being set up after filing of the pleadings and of course trial by ambush.
These core documents normally inform the cause of action and the material facts to be pleaded, some premised on the said documents. If copies are not obtained at the time of preparation of the pleadings in the hope that they will be adduced at trial, in light of order 7 Rule 14, the Plaintiff may fail to get to the stage of even filing trial bundles, as was the case in the aforementioned decisions. Advocates whose strategy is to withhold core documentation by not attaching them to the pleadings with clauses that “the documents shall be adduced at trial” may have a wrong litigation strategy which may backfire.
It is quite evident from the foregoing that the litigation strategy for filing trial bundles/ exhibits starts from the interview with the client, fact finding and documentation gathering. It is not uncommon to see advocates looking for documents to include in their trial bundles long after the filing of the suit and they or their clients can’t find them. In other words, advocates look for documentary evidence long after the filing of the suit, in the hope that in the course, these documents may be availed. Cases where false documents have been presented in court or cases being withdrawn by counsel on account of lack of supporting evidence are normally caused by this belated action. We must adjust our litigation strategies.
In the second publication, we will look at the evolution of the practice of filing trial bundles, the procedure, critical considerations in preparing trial bundles and witness statements.
