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



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 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, about the matter in dispute, to a close family member and you consider that correspondence 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 refer to the photo marked Exhibit 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 and you don't have to disclose them (but you might choose to). You only have to disclose relevant non-privileged photographs.



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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.


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