Disclosure - Should inter-Partes Correspondence be on the Disclosure List?

What is Inter-Partes Correspondence?

Inter Partes is Latin and means literally "between the parties". Nowadays courts and lawyers tend to use Latin as little as possible but sometimes a Latin phrase stays in common use because it is understood as signifying something more precise than its literal meaning - something for which there is no snappy English equivalent.

Once litigation is commenced there will be some written communications (emails and letters) between the parties as the litigation proceeds. The parties will also send documents to each other, such as pleadings and witness statements, but anything in writing which is a communication (rather than a document) is called inter partes correspondence. Strictly speaking inter partes correspondence is any correspondence between the parties (or their solicitors if solicitors are appointed) once the current legal proceedings are intimated, so it covers letters before action and other pre-action correspondence in the run-up to the formal issue of legal proceedings.

Of course often the parties will have corresponded in the months and years leading up to the point where legal proceedings are intimated, and some of that correspondence may be evidence in the case but inter partes correspondence is a phrase used in a restricted sense to mean only the correspondence during, and about, the legal process itself, not previous correspondence which might be evidence in the case.

Is Inter-Partes Correspondence relevant evidence?

An example of inter-partes correspondence would be letters between the parties seeking to agree what directions should be given - how many days should be allocated for the trial, for example. Another example would be correspondence arranging a date and time for the expert witness engaged by one party to inspect land, or other property owned by the other party, which is relevant to the legal dispute. 

Although the expert witness will be giving evidence, the correspondence arranging a date and time for the expert's visit is not itself relevant evidence - it doesn't shed any light on the disputed issues in the case. Likewise the result of the parties correspondence trying to agree directions will either be that they agree and the court/tribunal makes those directions "by consent" or else they can't agree and the court/tribunal makes a decision (or the court/tribunal might impose its own view even though the parties are agreed). In any event the court/tribunal will have made a binding order giving directions for steps leading to the trial and it is only that order which will need to be referred to at trial - not the parties' previous correspondence leading up to it. Most inter-partes correspondence is of this nature  - it is, one way or another, about administrative matters preparing for the eventual trial but the inter-partes correspondence itself won't be evidence at the trial because it does not itself prove anything.

But, as with all general rules, there are occasionally exceptions. Suppose that by the time the expert inspects the property it has unexpectedly been repaired so that the expert is not able to report fully on the damage (which is the subject of the legal case). Suppose that it was repaired shortly before the expert's visit and that the correspondence trying to arrange a date and time for the expert's visit extends over several months and appears to show that the party with the expert is making all the running in trying to arrange a date and the other party is tardy in replying and/or keeps cancelling appointments. In this case it might seem that the property owner might have had something to hide and the barrister representing the party with the expert might want to cross-examine along these lines at trial, so in this exceptional case this particular chain of inter partes correspondence would be relevant evidence needed at trial.    

In inter partes correspondence, particularly in pre-action correspondence, a party may set out facts which they allege happened in the past and what, they say, are the legal consequences. And the other party may dispute some or all of those alleged facts or, at least, dispute what the legal consequence is. Once legal proceedings are issued each party will serve "pleadings" (drafted by their barrister) which set out what they allege at a high level, and detail will later be supplied when witness statements are exchanged prior to trial. The pre-action correspondence then generally plays no part in the trial because it provides no extra evidence. If a party has said in pre-action correspondence that they remember such-and-such happening 5 years ago they will presumably also say that in their witness statement. They will be cross-examined at trial on what they say in their witness statement and the judge will form a view as to the reliability of their evidence. The fact that they said the same thing in inter partes correspondence shortly before issuing proceedings adds no additional weight - that is what you would expect. If they had said the same thing in correspondence years ago that might add some additional weight, but saying something in inter-partes correspondence during, or immediately before, litigation adds no extra weight to the same thing said in the witness statement.    

So inter partes correspondence making assertions about facts is generally not relevant evidence. However in the unlikely event that in inter partes correspondence a party actually says something different from what that party then says in its pleadings, or in its witness statement, that would potentially be relevant evidence because it casts doubt on their recollection. Of course if it is an obvious typo it proves nothing but if there is a significant difference about something which matters - or even a significant difference about something which doesn't matter but which may indicate imperfect memory about the events in question in general - then that item of inter partes correspondence would be relevant evidence.      

Other examples where items of inter partes correspondence may, exceptionally, be relevant evidence include a letter or email which is not just about past events but has some current significance such as:
  • A letter or email which communicates a legal decision the writer is making - for example saying that they are exercising an option which they have under a contract, or giving notice to quit, "rejecting" goods delivered which do not conform with the contract of sale, severing a joint tenancy, or terminating a contract; 
  • A letter or email offering to do something - e.g. offering to do something practical to ameliorate a problem. Offers to settle the case are normally "without prejudice" and can't normally be used as evidence but an offer to do something to ameliorate an ongoing problem - not as a settlement but just as a practical gesture irrespective of the ongoing case - such as offering to cut a neighbour's hedge for them - can be relevant evidence.
  • A letter or email which makes a legal admission, such as acknowledging that another party has good title to land.
  • If your case is about a continuing (or recurring) state of affairs and you, or your opponent, are seeking an injunction to prevent continuation or repetition in future, whether the court grants an injunction may depend partly on whether future continuation is threatened or likely and some recent inter partes correspondence may help to establish a party's intentions and help to show why an injunction is needed or, alternatively, why it is unnecessary.

Should Inter-Partes Correspondence be included on the Disclosure List?

This depends on the rules and directions of the particular court or tribunal but often the application of the rules is unclear and the general practice is often as follows.

In the past

In the 20th Century it was the usual practice of solicitors to include in every Disclosure List they prepared an entry saying "inter partes correspondence" so that they had formally disclosed that group of documents as it existed at the time the Disclosure List was prepared. The rationale for that might be criticised on at least the following technical grounds
  • Listing documents by group was permitted under the rules then in force but only where the documents were of the same type, but including items of correspondence in a group purely on the basis that they are all inter partes correspondence is stretching the concept of being of the same type.
  • Even if some items of inter partes correspondence are relevant most items will not be and a Disclosure List is only supposed to include relevant evidence.           
Despite these theoretical objections including an "inter partes correspondence" entry on the Disclosure List was the invariable practice and most solicitors who thought about it probably took the view that they might as well add it as there was no downside. In the 20th Century, before email communications took off resulting in a mushrooming of the number of documents existing in the typical case, there was little concern about disclosing some documents which were not relevant, and there was no automatic obligation on the disclosing party to provide copies. Copies were only provided on request and providing the requesting parties paid for the photocopying and the party receiving the Disclosure List was unlikely to request copies of correspondence they already had. 

The practice now

The new Civil Procedure Rules 1998, which apply to most civil courts, came into force at the turn of the century and since then the rules applying to most tribunals have also been replaced, and the general approach of the new rules in the 21st Century includes:
  • Taking care not to disclose irrelevant documents (as well as taking care to disclose relevant documents)
  • Providing copies of documents automatically (generally in PDF or other electronic form) at the same time as providing the Disclosure List 
So now the practice of adding a "inter partes correspondence" group entry to the Disclosure List is less common and generally only specific items of inter partes correspondence which are relevant are listed.

That leaves the question of what to do with relevant inter partes correspondence written after the Disclosure List has been provided. One argument is that simply by sending an item of such correspondence it was, by that very act, "disclosed".


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