When a court or tribunal makes an order for disclosure of documents the parties have to disclose to each other relevant documents they have (or have had).
"documents" does not mean just formal legal documents but includes anything In which information is recorded so includes both things written on paper and things on a computer, phone, etc. Files containing photos and video/audio recordings are just as much documents as files containing writing.
However you do not have to disclose documents which are legally privileged. Written advice from a qualified lawyer is an example of a document which is privileged. The reason why the law does not require such documents to be disclosed is obvious: it would give a party an unfair advantage to see advice about the strengths and weaknesses of the other side's case, and if written advice had to be disclosed it would lead to people only obtaining advice from a lawyer by word of mouth, and never having anything in writing, with all the risks of forgetting or misunderstanding which that would entail.
Any document created for the purpose of litigation or for the purpose of legal advice is privileged. Apart from ensuring fairness, another reason for this legal rule is that it saves time and money. The process of litigation generates a lot of writing. If every email a litigant sent to, or received from, their lawyer had to be disclosed to the other side then the time taken by the other side to read it would be enormous and the cost of the litigation would be much greater than it would otherwise be.
Whether a document is legally privileged depends on why it was created. If you arrange to go and see a lawyer (solicitor or barrister) to get advice about litigation concerning your land (say, about rights of way) you might decide to use your phone to take some photographs just before you see the lawyer so that you can show the photos to the lawyer. Those photographs will be privileged because the reason why you took (created) the photos is to obtain legal advice. You might also show to the lawyer some family photographs which you took a few years ago if they happen to show, in the background, the land you want advice about. Those photographs will not be privileged because the reason why they were taken (created) was not for the obtaining of legal advice. The reason why you are showing them to the lawyer is to obtain legal advice but that is not the reason why they were originally taken (created). It is why a document was created which determines whether it is privileged or not.
You might want to read the above paragraph again to make sure you understand the principle of what makes a document privileged or not privileged.
Up to now we have been talking about "legal privilege" but there are actually two main types of legal privilege, legal advice privilege and litigation privilege, although they often overlap. Legal advice privilege covers all documents created for the purpose of legal advice. So if you have moved into a new house and you ask a lawyer to advise you about your rights and responsibilities regarding, say, rights of way, your correspondence with the lawyer, and any document - such as a photograph - you create to show to the lawyer, is privileged even if no dispute has arisen and litigation is the furthest thing from your mind.
Litigation privilege covers all documents you create for the purpose of litigation, not just documents you create to show to a lawyer for advice about the litigation. So, for example, if you decide that, to save lawyer's fees, you will deal with the disclosure of documents stage of litigation yourself, and you make notes about the various issues in dispute to help you decide which documents are relevant, those notes are privileged, even though not connected with obtaining legal advice, because the notes were created for the purpose of the litigation.
One further thing about legal privilege: if a document is privileged, although you do not have to disclose it, you can choose to disclose it. If you choose to disclose a privileged document, whether by simply enclosing a copy with an email you send to the other side, or by including it on your disclosure list at the disclosure of documents stage, it ceases to be a privileged document because you have "waived" privilege. One example where you might want to waive privilege in a document would be if you have taken a photograph for the purpose of obtaining legal advice and you then decide that it would be useful to use that photograph at trial. Waiving privilege and disclosing the photo allows you to use it at trial (you can't use at trial documents you have not disclosed).
It is important to understand which documents are privileged and which are not because you have to disclose all relevant non-privileged documents. If you have read the above you should now have a good idea of how to tell whether a document is privileged and you are ready to test your understanding by reading the example below and deciding which documents are privileged in the example.
Suppose that it is early February and you have just moved into a new house. You find that neighbours are parking in your drive. Your first thought is that they have probably been doing this while the house was unoccupied (the person you bought the house from only bought it himself in January and never lived in it) and that now that neighbours realise it is occupied (you are about to call round and say hello) they will stop parking in the drive.
But they carry on parking in your drive so you decide to take photos of the parked cars and keep a log for a week noting when cars are parked, and their colour and make/model and registration number. At this stage you are not thinking about any kind of legal action: you are just thinking that if you keep a log then you will be able to have a polite word with you neighbours – it may be their visitors who are parking and the log will help to establish whose cars they are. You also write to the person who used to own and live in the house up until January to ask them whether they ever had problems with people parking in the drive.
Despite your polite requests to your neighbours the problems persist and by early March you decide to seek legal advice and arrange to see a lawyer (solicitor or barrister) in mid-March. So that you can give the lawyer up to date information about the problem you keep another log and take more photos.
In April you start to think about litigation. When you consulted a lawyer in March your main concern was to have advice about your legal rights – was there anything in the title deeds which might give anyone a right to park on your drive, for example – but now that you have had it confirmed that there is nothing in the title deeds giving people any right to park on your drive, and with the problem continuing even though you have explained this to your neighbours, you start to think about litigation. You have not definitely decided on litigation but you are thinking about it. Because the lawyer has advised you that it is possible for people to acquire a right to park through long usage, you decide to write again to the person who used to own the house, this time saying that you are thinking about litigation and could they write down everything they remember about people's parking habits in the past and asking whether, if necessary, they would they be willing to be a witness in court. They write back to you at the end of April giving a chronological account of what they remember and enclosing two old photographs and a copy of a letter they wrote to their neighbours some years ago. One of the photographs shows a large number of cars parked in the drive of what is now your house (which you are told are neighbours' cars); the other one shows a number of cars parked around a neighbour's house tightly packed apparently in a deliberate attempt to avoid parking on your drive.
At the beginning of May you are starting to think that the only way to stop neighbours parking on your drive is to start a court claim but your lawyer advises that before actually taking the step of starting the court claim you should write a ‘letter before action' warning your neighbours that if they do not stop parking on your drive you will start litigation. The lawyer tells you what words to use in the letter but leaves you to fill in some of the details. It takes two drafts before you are satisfied with the letter which you then send to your neighbour enclosing one of the photographs you took in March.
During May you take more photographs and start another log. Your neighbours do not respond to your letter before action, so you decide to start a court claim.
After you have started the court claim, a judge gives directions that each party must provide a disclosure list to the other by 5th October and exchange signed statements of its witnesses by 20th November. The judge also gives each party permission to engage its own expert witness land surveyor and directs that each party's expert reports should be exchanged by 20th December. You ask a lawyer to draft a witness statement for your witness (the previous owner) and the lawyer uses the detailed letter written by the witness in April to produce a first draft of the witness statement for the witness to check. There are several drafts and when the witness is satisfied that it is completely accurate, the witness signs the witness statement and that statement is among the witness statements exchanged by 20th November. Following that expert reports are exchanged.
In the above example, the log you kept in February, the photos you took in February, and the letter you wrote in February, are not privileged documents.
The log you kept in March and the photographs you took in March, and the lawyer's written advice, are privileged documents because the main purpose in creating these documents was in connection with obtaining legal advice. The log is still privileged and most of the photos are still privileged (as is the lawyer's advice) but the photo which you sent out with your letter before action in May is no longer a privileged document: by sending it to the person you are in dispute with you have given up ('waived') privilege.
The letter you wrote to the previous owner in April, and their reply, are both privileged documents because the main purpose of writing them both was in connection with possible litigation. The two old photographs which the previous owner sent to you, however, are not privileged. This is because when they took them, years ago, that was nothing to do with the current litigation. Their purpose in sending them to you is in connection with litigation but it is why they were initially created (taken) which determines whether they are privileged or not. Likewise the copy of the letter they sent to neighbours years ago is not privileged.
The log you made in May, and the photographs you took in May, are privileged because you created them in connection with possible litigation. The letter you wrote in May in its final form and the two drafts were privileged documents. When you sent out the letter (and photo) you waived privilege so the letter you sent out and enclosed photo are no longer privileged but the two previous drafts of the letter, which you have not sent out, remain privileged.
The signed witness statement, and previous drafts, are privileged. When the witness statement is exchanged it ceases to be privileged but previous drafts remain privileged. Likewise when you receive the report from your expert it is privileged but once it is exchanged it ceases to be privileged.
If you got the answers right and you know how to tell a privileged document from a non-privileged document, you are ready to start working out what documents should be disclosed.
In most cases which are to end with a trial, the court or tribunal will order the parties, in advance of the trial, to disclose to each other relevant documents that they have. Generally speaking the order will require each party to disclose:
Note: in larger court cases sometimes the court orders more limited disclosure after reading disclosure reports provided by the parties.
Having worked out what documents are privileged and which documents are not privileged, it is easy to work out what documents should be disclosured, using the following rules
1. Every non-privileged document which supports your case must be disclosed
2. Every non-privileged which supports you opponent's case must be disclosed
Note: Although you are only obliged to disclose relevant non-privileged documents you already have (or have had), it may be in your interests to look for other documents - e.g. at the Land Registry - as they may help your case, and if you do this and obtain copies of further relevant documents they must then be included on your disclosure list.
3. Don't disclose any correspondence between you and witnesses or potential witnesses – that is privileged (but any old correspondence with them, before litigation or legal advice was thought of, is not privileged and should be included if it supports your case or supports you opponent's case)
4. Don't disclose any correspondence with your lawyer or any written advice from your lawyer – that is privileged
5. Don't disclose without prejudice correspondence - i.e. correspondence in which settlement offers are made and responded to - that is privileged
6. Don't disclose correspondence with an expert you have instructed in connection with the litigation or the expert's report – that is privileged (though sometimes the court/tribunal may make a special order that this must be disclosed if you wish to rely on the report)
7. If you have privileged documents which you want to use at trial to support your case - such as photographs taken after litigation was first thought of – you can choose to disclose them, or some of them. It is your choice but you will not be able to use a document at trial if you have not disclosed it
Depending which court or tribunal it is you may be required to provide a list of the documents you are disclosing together with copies of the documents themselves.
Some courts/tribunals only require you to provide a numbered list of documents initially and you only have to provide copies of particular documents if and when the other party requests a copy but, even where this is so, if you have the documents in electronic form (i.e. on a computer, tablet, phone etc.) it is normally best to provide copies at the same time as the list without waiting to be asked. One reason for this is that if you make a clerical error in describing a document on the list (e.g. giving it the wrong date) and you are not asked for, and do not provide, a copy, the error may only come to light just before the trial and you may be barred from using that document at trial because it was not disclosed, whereas if you had sent a copy it would be difficult for the other side to argue that you should be barred from using it because, even if by accident it was misdescribed on your list, what document it was will have been obvious to the other side from the copy you supplied at the time.
Some courts/tribunals only require you to provide copies of documents and do not require you to provide a list. And some courts which ordinarily require lists allow the parties to dispense with lists by agreement. However it is best always to provide a list as it helps to avoid disputes later on about exactly what docucuments each party provided.
For a more detailed explanation of the process of disclosure of documents, see here.
The above explanation of the law as it relates to disclosure of documents is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice
This page was lasted updated in December 2016. Disclaimer