Disclosure - Court or Tribunal directions to search for and disclose documents


Contents

  1. 1 Introduction to Disclosure of Documents
  2. 2 Searching for Documents
  3. 3 How the Court or Tribunal decides what searches to order the parties to carry out
  4. 4 You yourself have to deal with Disclosure of Documents
  5. 5 Frequently Asked Questions
    1. 5.1 I have been ordered to search for and disclose all documents which support or undermine my case on a particular issue in dispute. How do I work out which documents they are? 
    2. 5.2 I have been ordered to search for and disclose all documents which support or undermine either party's case on each and every issue in dispute. How do I work out what issues are in dispute? 
    3. 5.3 What do I do if some of the documents I have been ordered to search for are confidential? 
    4. 5.4 The order requiring me to search talks about documents which are in (or have been in) my "control". What does "control" mean?
    5. 5.5 What is a "document"?
    6. 5.6 What should I do if further documents come to light after I have sent out the Disclosure List?
    7. 5.7 Do I have to disclose correspondence between myself and my barrister?
    8. 5.8 I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include witness statements?
    9. 5.9 I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include expert reports?
    10. 5.10 I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include photographs?
    11. 5.11 It all sounds a bit complicated. Can I ask a barrister to carry out the disclosure of documents process for me?
  6. 6 Disclaimer

Introduction to Disclosure of Documents

For the trial, at the end of the case, a Trial Bundle will be produced containing all the documents which the parties wish the court or tribunal to consider. In order to ensure fairness to both parties the court/tribunal will normally order the parties, at an earlier stage of the litigation, the Disclosure of Documents stage, to disclose - i.e. tell each other - which documents they will or might be using at the trial. You do not have to eventually include in the Trial Bundle, and use at trial, every document you disclose. You might decide not to use some disclosed documents after all. But you cannot use at trial any document which has not been disclosed (by you or by the other side) - at least not without special permission from the court/tribunal. 

You also have to disclose any documents you are aware of that you have (or have had) which, on the face of it, tend to help prove your opponent’s case. These are often called adverse documents. For example suppose you have sold machinery which you believe to have been in perfect working order when delivered but your customer claims it was defective and is suing you for damages. And suppose that the machinery was tested in your factory and the printout (printout A) showed a fault, and one of your mechanics was called in to rectify the problem and, after he had done so, the machinery was re-tested and the printout (printout B) showed it to then be working correctly, and it was then delivered to the customer the next day. In this case you have to disclose printout A because although you may believe the machinery to have been in good working order on delivery, as this is disputed in the legal proceedings then any document showing a fault (even a historical fault you believe was rectified) is a document which on the face of it tends to help your opponent’s case. 

In practice most documents which on the face of it might tend to help your opponent’s case are in fact documents you will want to refer to anyway. In the above example you would probably want to use the mechanic as a witness and, in his witness statement, the mechanic will want to include an explanation of how he got involved and came to be in a position to comment on the state of the machinery just prior to delivery. That explanation of how he came to be involved will refer to the first test and printout A, so in fact you will be relying on printout A as a background document anyway (as well as, of course, on the crucial printout B) but even if, for some reason, you decided not to use printout A, you still have to disclose it. 

Searching for Documents

Although you have to disclose adverse documents you are already aware that you have, you don't have to search for documents unless the court/tribunal orders you to (though in practice you will be carrying out at least some searches because you want to).

Searching can include searching for any sets of documents which you may not be aware you have - checking in your attic, for example - or checking for stray documents by, for example, looking down the back of the sofa, but most time searching is typically spent looking through sets of documents in order to see which individual documents, within the set of documents, are relevant - for example looking through paper documents in a drawer or paper file, or looking through electronic documents on your computer or phone, or doing searches on a public register such as that held by the Land Registry or Companies House, or buying an historical Ordnance Survey map.

You can think of searching as involving collection and review. You can't read, from start to finish, every word of every paper document you have, and every word of every electronic document you have on all your devices, and every word of every document held by the Land Registry! So you first collect - i.e. identify - documents based on, for example, what paper file they are held in, what folder they are in on your device, what the subject line of an email says, how old a letter is, or whether the document is picked up on a keyword search, and then you review - i.e. read - each collected document to see if it actually is relevant or not. 

At the Disclosure of Documents stage the court or tribunal will order you to carry out searches. You can search as much as you like but you have to at least include the searches which the court/tribunal orders. The court/tribunal will not order you to search at the Land Registry or buy a map but will only order you to search for relevant documents which are in your control. Documents in your control includes documents in your possession but it is a bit wider than that because, for example, if you have deposited documents with your bank for safe keeping they are still in your control even though they are not currently in your possessionIf you are using an email "client" app (so that you can access your emails on your device even with no internet connection) then the emails are in your possession on your device but even if you have no email client app and just access your emails on, for example, the Gmail website, those emails are still in your control even though the server computer they are stored on, thousands of miles away, is not in your possession You might be ordered to search through all documents which are in your control or the order may be more limited.

Whether you are searching because you want to or because you have been ordered to, any adverse documents you find among the documents in your control have to be disclosed. If you decide to search for documents on a public register and take copies, those copies are then in your control and have to be disclosed if they are adverse even though it was your decision to search the public register and not something the court/tribunal ordered.


How the Court or Tribunal decides what searches to order the parties to carry out

Up until about 20 years ago it was invariably the case that courts and tribunals would order each party to search for an disclose every document in its control which was likely to support or likely to adversely affect that party's claim or defence or any other party's claim or defence. This is still the normal practice in tribunals but in the courts the orders made are more varied and various changes in the rules and pilot schemes have been tried particularly in the last 10 years. The underlying reason for this change is the use of computers in society and business and particularly the widespread use of email and of the internet more widely. The average organisation and, indeed the average private individual, holds vastly more documents now, many in electronic form such as emails, than they would have done in times past when the great majority of documents were in paper form either in manuscript or typed with a typewriter. This potentially greatly increases the amount of time which has to be spent by solicitors carrying out searches on behalf of their clients in obedience to court orders for disclosure. At the same time the fact that many documents are held in electronic form potentially opens up new ways of collecting documents for review during the search. Before the use of computers became widespread any index to documents which an organisation might have would have been painstakingly maintained by human effort, and would have been limited in what was indexed. Computers, however, provide quite useful search capabilities even without any specific index being designed. You can search in specific folders or systems. You can search for documents which contain a word, or documents which contain two words either next to each other or within so many characters of each other, or documents which contain a word but do not contain another word etc. 

Concern about the increasing time taken by (and therefore cost of) orders to search for and disclose every relevant document, coupled with the possibility of keyword and other automated collection of documents for review, has led to court rule changes and pilot schemes whereby the parties are expected to put forward to the court proposals for what searches the other side should be ordered to carry out and what searches they propose that they should carry out and for a court hearing to decide what search orders should be made. 

Unfortunately whilst such procedures to determine what search orders the court should make save costs in a minority of cases, they can be a sledgehammer to crack a nut in the kind of cases where a party instructs a barrister direct with no solicitors. The courts deal with a great variety of cases. There are some commercial cases involving, say, allegations of abuse of a dominant market position going back years, in which there could be hundreds of thousands of potentially relevant documents, particularly emails. Then there are some cases, such as road accidents only involving damage to property, where there may be very few relevant documents at all (of course once litigation is threatened there may be a lot of pre-action letters/emails passing between the parties but in terms of documents which are evidence relevant to who caused the accident and the extent of the damage - the issues likely to be in dispute in the case - there will often not be that many documents in such road accident cases). Many cases, including many property cases, will be in between – there may be a number of relevant documents but not a huge number and usually it is actually easier for a party who has not engaged a solicitor to search for and disclose every relevant document in their control, which they would normally do in any event even if not ordered to, rather than try to get to grips with court procedures and questionnaires designed to inform the making of more limited search orders by the court. Of course court rules and procedures have to be complied with but often the rules have provisions for the parties to agree disclosure orders which, depending on the rules, either become effective immediately they are agreed or require ratification by the court before they become formal orders. The sooner a party makes clear that it proposes that both sides should search for and disclose all relevant documents, and the sooner the other party agrees, the simpler the procedure normally is.

Although you may be quite content that an order that both parties search for and disclose all relevant document is made, you may find that the other side, particularly if they have solicitors, will ask the court to impose more limited search orders on them and you will have to decide whether to go along with that or whether to seek to persuade the court to order them to search for and disclose all relevant documents or, at least, carry out a wider search than they are proposing.            
  
The reasons why solicitors on the other side might resist the making or an order for search and disclosure of all relevant documents in their client's control are various. They might simply be seeking to save costs by not carrying out certain searches which are difficult to do and which are unlikely to yield significant documents. Sometimes, however, solicitors have a hunch that searching in particular files might bring to light documents adverse to their client. Of course if the client/solicitor knows of an adverse document it has to be disclosed anyway but there are sometimes cases where a solicitor, with experience of the type of case, and perhaps knowing the particular client organisation, without knowing of specific adverse documents considers that there may well be adverse documents found if certain files are searched and therefore seeks a court order which does not require those particular files to be searched (no doubt saying that an order to search would increase costs - which no doubt is true but it may not be their only reason). This is, of course, a controversial and risky approach for solicitors to take. The file might contain adverse documents but it might also contain other documents which support their client's claim or defence which will not be found unless there is a search. And even if adverse documents are found, which then have to be disclosed, investigating thoroughly may uncover mitigating factors - for example a company employee might have negligently misrepresented some fact to a customer but it might transpire, if proper investigation is carried out, that there is evidence that the customer did not rely on the misrepresentation so that it caused no loss. Even if the client's main concern is their reputation, rather than the outcome of this particular case, it is often better, for an organisation's long term reputation, to confront past mistakes with a degree of openness and demonstrate reform rather than have historical failings keep coming out from time to time as they come to light piecemeal.

Of course if you know or suspect that the other side is seeking a limited search order because they fear what a wider order might bring to light, you will want to press for a wider order as documents it may bring to light may help your case.  
                 

You yourself have to deal with Disclosure of Documents

Barristers do not generally provide advice about disclosure of documents (why?) and if you are not able to deal with disclosure of documents without assistance you will need to engage a solicitor to deal with this for you. It can take time to select a solicitor and then for your chosen solicitor to complete the formalities before they then carry out the disclosure of documents work for you, so you should consider as soon as you read this whether you are sure that you are going to be able to carry out disclosure of documents unaided, and engage a solicitor now unless you are sure you will be able to do this yourself without assistance. 


Frequently Asked Questions

I have been ordered to search for and disclose all documents which support or undermine my case on a particular issue in dispute. How do I work out which documents they are? 

Here is an example to help you. Imagine a dispute between a householder and a builder. There might be a number of issues in dispute such as the quality of the work, what price was agreed, whether any specific date for completion of the work was agreed, etc.  

Suppose that in the court case, the householder claims that it was agreed, right at the outset, along with all the other terms, that the work would be completed by 1st November. However the builder denies that any specific completion date was agreed. Each party has been ordered to disclose all documents which support or undermine its case on this particular issue.

Imagine that you are the impartial judge who is going to have to decide who is right – whether a completion date of 1st November was agreed at the outset or not. In a civil case the judge decides on the “balance of probabilities” – i.e. is it more likely that the date of 1st November was agreed at the outset (as the householder claims) or is it more likely that no specific date was agreed (as the builder claims)? – so it is not just “smoking gun” evidence which is important but any document which tends to suggest that 1st November was agreed or any document which tends to suggest that no specific date was agreed will be a document which supports or undermines a party's case on that dispued issue.  

An email from the householder saying that the work needs to be done by 1st November and a positive response by email from the builder saying that he will agree to do that, are clearly documents which support or undermines a party's case on the dispued issue, but less conclusive documents may also do so. For example a fairly formal letter or email setting out the price and exactly what work is to be done but not mentioning any agreed completion date tends to suggest  that no specific date was agreed because, it can be argued, a completion date, if it had been agreed, would have been an important detail which you would expect to have been included in a fairly formal letter or email which mentions all the other key details.

Of course a formal letter or email giving all the other key details of the agreement but not mentioning a specific completion date is not entirely inconsistent with a completion date of 1st November having been agreed – when confirming what has been agreed people do sometimes miss off key details by mistake – but it tends to suggest that no specific date was agreed and therefore counts as a document which supports or undermines a party's case on the issue. Some documents strongly suggest where the truth lies; other documents provide weaker evidence, but, when producing a disclosure list at the Disclosure of Documents stage, when you find a relevant document you do not need to work out exactly how strong the evidence it provides is: as long as it at least tends to suggest where the truth lies on a disputed issue, it is a document which supports or undermines a party's case on that issue.  

When the builder misses the date of 1st November (or when it becomes clear that it is going to be missed) emails between the householder and the builder at that stage may also support or undermine a party's case on the issue of whether the date of 1st November was agreed at the outset. For example an email from the householder expressing concern about the delay but not mentioning any agreement as to any specific completion date undermines the householder's case because if there had been an agreement as to completion date you would, on the face of it, have expected that to be mentioned. There may be a good reason why it was not mentioned but when deciding whether a document supports or undermines a party's case on that issue you would look at each document and ask yourself the questions: At face value, and leaving aside any explanation which might be given, does this document tend to suggest that a date of 1st November was agreed? At face value, and leaving aside any explanation which might be given, does this document tend to suggest that no specific completion date was agreed? If the answer to either question is Yes, then it is a a document which supports or undermines a party's case on that issue.


I have been ordered to search for and disclose all documents which support or undermine either party's case on each and every issue in dispute. How do I work out what issues are in dispute? 

The pleadings tell you what issues are in dispute. Pleadings are formal documents sent by each side to the other at the beginning of proceedings which are, ideally, drafted by barristers to establish the points in dispute and the points not in dispute. 

Note: After the pleadings stage of proceedings there may be some kind of "case management" stage as which a judge will decide what directions to give for the orderly preparation of the case before the final trial (the directions will normally include an order for disclosure of documents). In order to assist the judge in deciding what directions are appropriate the judge may direct one or both parties to produce a case summary document and/or a list of issues in dispute document. Whilst case summaries and list of issues documents can help you to understand what issues are in dispute, caution should be exercised before relying on them too much because often they list the issues at a high level of generality. Also it often happens that each side has its own preferred way of framing the issues and tends to emphasise as being in issue the point they think they have a strong case on and play down the issues they are weaker on. (This is not always deliberate: one of the reasons why disputes can arise is that one party assumes that something is obvious and can't be disputed when the other side does dispute it.) Generally it is the pleadings, rather than any case summary or document of list of issues document produced for the purposes of "case management", which ultimately defines what issues are in dispute.


What do I do if some of the documents I have been ordered to search for are confidential? 

Some confidential communications - e.g. with your barrister about the case - are legally privileged. See here for more information about claiming legal privilege against disclosure. But there may be some other documents which are not legally privileged but which can nevertheless be argued to be confidential. Let's call these merely confidential documents to distinguish them from documents which are actually privileged against disclosure. For example, a third party (not a lawyer) may, before any litigation was contemplated, have written to you giving information which is now relevant to the case, and they may have said when writing that they were writing in confidence. Or you may have sent correspondence to a close family member which you consider private. The court/tribunal has a discretion as to whether to order you to disclose merely confidential documents and will generally weigh up the importance or preserving confidentially with the importance of the document to the fair determination of the case. For example if a merely confidential document provides fairly weak evidence about a particular issue and there is a lot of stronger evidence available which can be used at trial, the court/tribunal may, in it's discretion, not order disclosure of the merely confidential document, whereas if the merely confidential document is crucial to the case the court/tribunal may order it to be disclosed even if it is highly confidential, as long as, of course, it is not legally privileged. 

If you do not want to have to disclose a merely confidential document because of confidentiality the best time to raise this is at the hearing at which the court/tribunal is considering what disclosure order to make. Sometimes this is not possible because the court/tribunal makes an order to disclose a certain class of document and it is only when you are searching for documents, in obedience to the court's/tribunal's order, that you find that one particular document, within that class of documents, is merely confidential. In this case you would have to make an application to the court/tribunal for the disclosure order to be changed. Such an application might be costly and time-consuming so in this situation it may be best to simply disclose the merely confidential document unless the reasons for confidentiality are truly compelling. 


The order requiring me to search talks about documents which are in (or have been in) my "control". What does "control" mean?

The word control covers documents in your physical possession such as paper documents in your desk drawer or filing cabinet or other filing system or on your computer, tablet or phone, but it also covers documents which are not physically in your possession but which you nevertheless still have control of - examples include offsite storage (with an external storage supplier), emails on a "cloud" email system such as Gmail, notes held by your employees which were taken during the course of their employment, documents you have sent to your accountant, and documents lodged with your bank for safe keeping. Even if your bank is holding your documents as security for a loan, and so will not return the originals to you while the loan is outstanding, you are still entitled to ask the bank for copies of the documents, so they are still counted as being in your control.


What is a "document"?

Anything you have in which information of any description is recorded counts as a document, so letters, emails, photos, plans and text messages are all documents. Even an audio or video recording - e.g. an MP3 or MP4 file - is a document.

 

What should I do if further documents come to light after I have sent out the Disclosure List?

The court's/tribunal's disclosure orders (and/or the court's/tribunal's rules) create an ongoing legal duty so that if, for example, you are ordered to search for and disclose all title deeds in your control for a particular property, that means you have to not only disclose those deeds for that property which are in your control when the order was made but you also have to immediately disclose any further deeds for that property which come into your control at any time in the future (before the end of the case). So although the order will not oblige you to search public registers such as the Land Registry, if you do decide voluntarily to ask the Land Registry for deeds for the property (e.g. to see if they may help your case) when those deeds then come into your control (when you receive them by post or on your computer) you are then obliged to immediately disclose them (even if they happen not to support your case or even tend to undermine your case) because of the ongoing legal duty to disclose such documents which come into your control if they are within the scope of the court's/tribunal's order (unless they are privileged).

Another circumstance in which documents come into your control might be if, when witness statements are being taken, a witness provides a relevant document. For example if you are ordered to disclose all title deeds in your control for a particular property, it might be that when a particular witness - say a previous owner of your property - is interviewed, they produce another historical deed for the property which you have not seen before and give it to you or allow you to take a copy. In this case you have to disclose the document straightaway even before witness statements are exchanged. 

Sometimes the court's/tribunal's order will require you to search for, and disclose, particular categories of documents which are (or have been) in your control. Sometimes the court's/tribunal's order will simply require you to disclose documents in a particular category which you happen to already know are (or have been) in your control without requiring you to carry out a search. But if you do at any stage carry out a search and find further documents in that category (or happen to come across them in some other circumstances) then, of course, you have to immediately disclose those further documents (unless they are privileged). 


Do I have to disclose correspondence between myself and my barrister?

No. A written Opinion or other written advice from a barrister is covered by legal advice privilege. This means that you can keep its contents confidential and do not have to provide a copy of it to anyone. Not only do you not have to, but you should make sure you do not, provide a copy to the other side by mistake. An Opinion is a frank assessment of the strong and weak points of your case and showing it to the other side would give them an unfair tactical advantage. You will not be relying on the written Opinion or other written advice from a barrister as evidence. You may be thinking that it is a bit odd to say that you will not be relying on a barrister's Opinion, but the point is this. The documents you are identifying at the present time are evidential documents - documents which themselves help to prove one or the other party's case. A written Opinion is not itself an evidential document. It may contain legal arguments but those legal arguments stand on their own merits. Those arguments can be made by your barrister at trial (to the extent that they are still appropriate given e.g. how the witness evidence comes out at trial). Some (not all) legal arguments and factual assertions are of a type which you have to notify the court/tribunal (and the other side) about at the Pleadings stage (if you don't you might not be allowed to use those particulars arguments at trial - so you should have made sure that your pleadings were drafted by a barrister) but a written Opinion which happens to contain those arguments or other arguments is not a document you should disclose to the other party. 


I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include witness statements?

No. Witness statements prepared for the current proceedings are handled differently from other documents. You do not disclose them at the Disclosure of Documents stage but at a later stage of the litigation process known as the Exchange of Witness Statements stage (technically they are privileged until exchanged). Or if you have to go to court and ask for a temporary injunction at an early stage, a short witness statement will be filed and served before the Disclosure of Documents stage, but, whether served before or after, witness statements are dealt with separately from evidential documents disclosed at the Disclosure of Documents stage.There is a reason why the witness statements are exchanged, and showing the other side a witness statement prepared for the current proceedings earlier than necessary would defeat the object of simultaneous exchange of each side's witness statements. At the Disclosure of Documents stage, you will be using the My Documentary Evidence DCS case to disclose to the other side the evidential documents you will be relying on and any other documents the court/tribunal orders you to disclose at that stage so it is important not to load into that DCS case anything you will not be disclosing to the other side at the Disclosure of Documents stage, in case that results in you disclosing it at the Disclosure of Documents stage by mistake. Instead you should store witness statements in the Pleadings, Orders and Witness Statements DCS case.

Note: if you have a witness statement which has already been used in the current proceedings - e.g. if you have already gone to court at an early stage of the current proceedings to get a temporary injunction relying on that witness statement - it would not really matter if you disclosed that witness statement again now - because the other side already has it, but disclosing it is unnecessary and adding things to the disclosure list which do not need to be there just increases costs. Also at the start of the current proceedings each party will send to the other "pleadings" setting out their case at a high level. In court cases pleading documents are called Part 8 Claim Form, Part 7 Claim Form, Particulars of Claim, Defence, Defence and Counterclaim, Reply to Defence, Reply and Defence to Counterclaim, and Reply to Defence to Counterclaim. In tribunal proceedings pleadings have various names depending on the tribunal, but are sometimes called Applicant's Statement of Case, or Respondent's Statement of Case. Again it would not really matter if you disclosed pleadings again now, but it is unnecessary and just increases costs.       

Note that although witness statements produced for the current proceedings are not themselves disclosed at the Disclosure of Documents stage, the witness statements may well refer to documents (e.g. "I I refer to the photo marked JJS13 which I took on...") and of course those documents themselves must be disclosed at the Disclosure of Documents stage.    

You should also not disclose earlier drafts of witnesses statements (which are also privileged). Nothing would be gained by you disclosing earlier drafts. Indeed disclosing earlier drafts could actually disadvantage you because the barrister on the other side (particularly if they do not have anything more substantial to question a witness about) may try to make something out of differences between drafts and the final signed statement of a witness. There may be typos in drafts or one word may have been used in a draft, and, when the witness  comes to read it, they may realise that that word could be misunderstood and so substitute in the final version of their statement a different word which better describes what they remember. So do not disclose earlier drafts of witness statements - the courts/tribunals do not expect you to.

Exception: Having said that you do not disclose witness statements (and pleadings) for the current proceedings at the Disclosure of Documents stage, I should add that it is different for any statements you may have from other proceedings. Usually any  statements served in the past in other court or tribunal proceedings or in Land Registry applications will neither support nor undermine any party's case on disputed issues in the current proceedings, and will simply be irrelevant, but if you have any statements (or pleadings) served or filed in the past in other proceedings which do happen to support one party's case, or undermine another party's case, on a disputed issue in the current proceedings, you should load them (together with any associated exhibits) to the My Documentary Evidence DCS case and disclose them at the Disclosure of Documents stage. It is only witness statements which are prepared for the current proceedings which are exchanged at the Exchange of Witness Statements stage.


I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include expert reports?

No. In some court and tribunal cases a report from an "expert" such as a medical consultant, engineer, it-consultant or surveyor, is needed. For example, in the case of an unstable wall, a surveyor or structural engineer may be asked to write a report giving an assessment of the present condition of the wall, what remedial work is needed, and how much the remedial work is likely to cost. 

Most court's/tribunal's rules and directions make special provision for expert reports - whether specific permission is needed to rely on them, when they should be exchanged etc. So such expert reports are generally dealt with at a separate stage from the Disclosure of Documents stage (technically they are privileged until they are exchanged).

Exception In exceptional circumstances, however, an expert report might be treated as an ordinary evidential document which needs to be disclosed at the Disclosure of Documents stage if it comes within the scope of the court's/tribunal's order. For example in some cases it is legally important to establish not just the objective facts of past events, but also what people at the time genuinely believed the facts to be. If what someone reasonably believed in the past is disputed then what that person read in the past may be probative of what their belief was. People do not always believe what they read but if someone, in the past, commissioned an expert report they may well have believed what it said. So, depending what your case is about, and whether there are any relevant old expert reports, it is possible that an old expert report might be disclosable as as an ordinary evidential (unprivileged) document. 


I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include photographs?

Yes it does but remember that you can choose whether or not to disclose photos which are privilegedAll photographs (and videos) which you took for the purposes of litigation or to seek legal advice are privileged. You only have to disclose privileged photographs if you want to rely on them at the trial. Because it is so easy to take photographs people tend to take a large number of the same subject on the same occasion just in case some come out clearer than others. If you have a large number of non-privileged photographs which come within the scope of the court's/tribunal's disclosure order, you have to disclose them all, but for privileged photos which you choose to disclose so that you can rely on them, you can be selective - e.g. if 10 privileged photographs were taken of the same subject from the same angle on the same occasion you probably only need to include one of the ten - the clearest one. 


It all sounds a bit complicated. Can I ask a barrister to carry out the disclosure of documents process for me?

No. Unfortunately not. See here for the reason why not. If you do not feel able to carry out the disclosure of documents process yourself you will need to engage a solicitor to do this for you.

There are advantages in carrying out the disclosure of documents process yourself. Not only will it save a considerable amount of money but the process of looking through documents you have, including past letters and emails, working out which are relevant, will refresh your memory about what you wrote, when, and why and as a consequence you will be better prepared to answer questions from the witness box at the eventual trial.   

Most clients find that if they take the time to read this webpage (and its links) it becomes clear what they need to do when carrying out the disclosure of documents process. It takes time but they can do it. If, however, you do not feel that disclosure of documents is something you are able to do, you will need to engage a solicitor.

The reason why engaging a solicitor to carry out the disclosure process for you is likely to be expensive is partly that the disclosure process itself can take some time, partly because the solicitor will need to interview you to find out the locations which might need to be searched (you can provide the solicitor with a copy of your computer disk but the solicitor needs some guidance as to where to look and will need to consider with you what other locations may need to be searched), and partly because solicitors are generally reluctant to just carry out disclosure without having ongoing control and conduct of your case - which will entail further costs. In fact if you know you are going to ask solicitors to carry out disclosure of documents for you it is probably best to instruct solicitors from the outset and not instruct a barrister direct. If you are gong to instruct solicitors to deal with disclosure you should certainly instruct them in good time, preferably at least two months before the deadline for disclosure. 


Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else. 

The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.


This page was lasted updated in December 2018. Disclaimer