Disclosure of Documents


Contents

  1. 1 Introduction to Disclosure of Documents
  2. 2 Searching for Documents
  3. 3 You yourself have to deal with Disclosure of Documents
  4. 4 How to Disclose Documents at the Disclosure of Documents Stage
  5. 5 Frequently Asked Questions
    1. 5.1 Why do I have to work out what documents need to be disclosed, and therefore loaded to the My Documentary Evidence case - why not just load up and disclose every (non-privileged) document I collect without reviewing them first? 
    2. 5.2 Should I load video and audio files to the My Documentary Evidence DCS case?
    3. 5.3 I have heard that I only have to provide a list of documents and I don't have to provide copies of the documents unless and until I am asked to. Is that right?
    4. 5.4 What format should I send copies to the other side in?
    5. 5.5 Before I had contacted the other party with a view to agreeing a future date for exchange of disclosure lists, the other party unexpectedly disclosed their documents (with copies of the documents themselves). I was not ready to disclosure documents at that stage but now, some days later, I am ready and about to disclose my documents. But now that I have copies of the other party's disclosed documents in my control, some of which I did not have before, do I have to consider whether to include those new documents I have received in my disclosure?
    6. 5.6 Before Disclosure of Documents was even ordered, the other side sent me copies of some documents, some of which I already had and some not. But as they are all in my possession now, should I load them all to the My Documentary Evidence case?
    7. 5.7 If I have multiple copies of a probative document, do I have to disclose every copy separately?
    8. 5.8 I have received a disclosure list and copies of the documents on it from the other side - what should I do now?
    9. 5.9 What should I do if further documents come to light after I have sent out the Disclosure List?
    10. 5.10 What if I am obliged to provide copies of documents before the Disclosure of Documents stage?
    11. 5.11 Do I have to disclose correspondence between myself and my barrister?
    12. 5.12 It all sounds a bit complicated. Can I ask a barrister to carry out the disclosure of documents process for me?
    13. 5.13 Why do courts and tribunals order disclosure of documents in advance of the trial?
  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. So it is important to consider carefully what documents you will need to rely on and, therefore, need to disclose - along with any other documents you are required, by the rules, or by specific directions by the court/tribunal, to disclose. A document, by the way, is anything in which information of any description is recorded so letters, emails, photos, plans and text messages are all documents. Even an audio or video recording - e.g. an MP3 or MP4 file - counts as a document.

You should never send the other side a copy of any legal advice you have received (or any correspondence with a barrister or solicitor). You do not have to provide a copy because it is legally privileged and you should not provide a copy because an Opinion is a “warts and all” assessment of the strengths and weaknesses of your case and providing it to the other side would give them an unfair tactical advantage.

You should not send your witness statement itself, nor the statements of your other witnesses, to the other side at the Disclosure of Documents stage because they will be exchanged later on, by a later deadline as ordered by the court/tribunal (some witness statements may have already been served if there has been an application) but you should make sure you disclose, at the Disclosure of Documents stage, all the other documents you will or may need to rely on at trial – i.e. the documents which help to prove your case. This includes 
any documents which have been referred to in witness statements already served or any documents referred to in witness statements which are yet to be exchanged (but not the yet-to-be-exchanged witness statements themselves).

You have to disclose any documents you are aware of that you have (or have had) which, on the face of it, are likely to adversely affect your case or likely to support your opponent’s case. 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 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

As a result of seeking advice about your case from a barrister and generally thinking about the case and looking at documents you will know of some documents which are relevant. But you will not know whether, among all your papers or on your computer or phone, or elsewhere, there are other documents which are relevant unless you carry out a search.

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 in a folder on your computer or phone, or doing searches on a public register such as that held by the Land Registry or Companies House. You could also consider buying an historical Ordnance Survey map as searching.

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 sets of - documents which could contain relevant documents based on, for example, what box or paper file they are held in, or what folder they are in on your device, and then you review - i.e. read - each collected document to see if it actually is relevant or not. You could review each document as you collect it, or you could identify a number of documents first and review them all later, or you could review some documents (e.g. short documents) as you collect them whilst identifying others for review later but, whichever method you decide is easiest, collecting and reviewing are logically distinct actions. Some decisions you make about collection may be almost instinctive - you know that the ten boxes of past editions of The Spectator which you keep in your attic will not contain any relevant documents, for example -  whereas other decisions may require careful thought: given what is in dispute in the case you may be able to work out that no documents before a certain date could be relevant and so you can do a computer search to identify emails after that date, and collect paper documents by glancing at the date of each one. Some decisions made during collection may be more difficult: you could do a keyword search for documents containing certain words but how do you decide the exact keywords to use?   

At the Disclosure of Documents stage the court or tribunal might order you to carry out searches and before or at that stage you may have already decided 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 possession. If 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 court's/tribunal's order may be more limited (if there are a lot of documents on computer the court/tribunal might allow you to limit the documents to be collected by doing a keyword searches using specified keywords) but even if the order is quite wide you may want to search more widely. 

Although the court/tribunal will only order you to search and disclose documents in your control, if you decide to search for documents on a public register and take copies, those copies (in paper form in your possession or downloaded to your computer) are then in your control and may then come within the court's search order. Similarly whilst the court will not order you to buy an Ordnance Survey map, if you decide to buy one that is then a document in your control.


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. 

How to Disclose Documents at the Disclosure of Documents Stage

1. You should already have a separate DCS "case" named My Documentary Evidence for the documentary evidence you will be disclosing at the Disclosure of Documents stage. In the months before the Disclosure of Documents stage some documents will already have been identified - e.g. in a barrister's Opinion - and you can load these relevant documents into the My Documentary Evidence DCS case in advance. 

2. By the time you get to the Disclosure of Documents stage you will have carried out some searches, which have been ordered by the court/tribunal,  and you must load into the My Documentary Evidence case every document which you find which is likely to support or adversely affect your claim or defence or the claim or defence of another party, and which is not privileged

3. The following, in particular, are privileged so do not load the following to the My Documentary Evidence case:-
  • correspondence with your lawyer or any written advice from your lawyer
  • without prejudice correspondence - i.e. correspondence in which settlement offers are made and responded to
  • witness statements - the court/tribunal orders or rules will make special provision for when signed witness statements should to be provided but they are dealt with separately from the Disclosure of Documents stage.
  • recent correspondence between you and witnesses or potential witnesses - if you decide to use a witness it will be their signed witness statement itself which will be used, not correspondence with them as part of the process of obtaining a statement from them. (Note, however, that any old correspondence with them, before litigation or legal advice was thought of, is not in general privileged).
  • the report of an expert you have instructed in connection with the litigation - the court/tribunal orders or rules will make special provision for when expert reports need to be provided but they are dealt with separately from the Disclosure of Documents stage. 
  • correspondence with an expert you have instructed in connection with the litigation or correspondence with the expert about the expert's report.

4. In addition to adverse documents found during a search (2 above) which the court/tribunal has ordered you to make, you may be aware of other adverse documents in your control (e.g. from additional searches you have chosen to carry out or just because you have been aware of the documents from the start). You always have to disclose all adverse documents you are aware of unless they are privileged - and you therefore need to load them to the My Documentary Evidence case. 

5. Consider whether there are further documents (i.e. documents other than those mentioned in 1 to 4 above) which you could load into the My Documentary Evidence case which would help your case. Depending how extensive the searches ordered by the court/tribunal were, most documents not already covered by 1 may be covered by 2 above but perhaps not all. In particular consider:
  • Have you taken any photographs since litigation was first contemplated? - if so these will normally be privileged (and so not covered by 2 above) but you can choose to load them, or some of them, into the My Documentary Evidence case, if they support your case.
  • Normally the searches ordered by the court or tribunal (2 above) are only for documents which support or are adverse to a party's case and not for narrative documents. Narrative documents are documents which do not support one party more than another but just provide background or context information about events. You might want to load some (but usually not a huge number) of narrative documents into the My Documentary Evidence case if they will assist the judge at the trial in quickly understanding the background.    

6. Check that all the names and dates of the documents in the My Documentary Evidence case are correct.

7. Send the documents, in the My Documentary Evidence DCS case, to the other side as PDFs and formally serve on them a list of documents/disclosure statement/certificate as explained here.
    

You should keep to hand relevant correspondence you have with the other side about disclosure (e.g. the initial disclosure list, and any subsequent disclosure) so that if, when later on the trial bundle is being agreed, not long before trial, the other side objects to a document being included, querying whether it was ever disclosed, you are able to check that it was. 



Frequently Asked Questions

Why do I have to work out what documents need to be disclosed, and therefore loaded to the My Documentary Evidence case - why not just load up and disclose every (non-privileged) document I collect without reviewing them first? 

Even though it is true that not all previously disclosed documents have to be included in the Trial Bundle (generally a document is only included if either side wants it to be), disclosing large numbers of documents at the Disclosure of Documents stage will in itself increase costs (even if only a reduced number of documents is eventually included in the Trial Bundle). 

If you are genuinely in doubt whether a non-privileged document is relevant you can load it up and disclose it anyway but you should not disclose large numbers of documents without checking that they are relevant because that would unnecessarily increase the other side's legal costs as they would have to review all those documents. 

You may be thinking that someone has to spend time reviewing your documents and why should it be you, rather than the other party? The short answer to that is that the court/tribunal expects you to review the documents and to use reasonable efforts to avoid providing documents to the other party which are irrelevant to the issues in the case, and you may be penalised in costs if you provide large numbers of irrelevant documents. The longer answer is that you will inevitably be carrying out some kind of review of the documents you collect. For example you would have to at least check that documents are not privileged before you disclose them. Also in order to keep your legal costs to a reasonable level you will not want to give your barrister a large number of irrelevant documents when you ask them to advise you. So given that you will be reviewing documents to some degree and for some purpose anyway it is more cost-effective if it is you, rather than the other party, which, at the same time, reviews for relevance.

Should I load video and audio files to the My Documentary Evidence DCS case?

It is possible to load video files (e.g. mp4 files) and audio files (e.g. mp3 files) into DCS. However if you do this Caselines will make a per-MB charge. An alternative is to load a placeholder to DCS for each audio/video file. The purpose of the placeholder is to ensure that the video/audio file is not overlooked - it ensures that the video/audio file is included in the disclosure list generated by DCS. The video/audio file itself is not stored in DCS. 


I have heard that I only have to provide a list of documents and I don't have to provide copies of the documents unless and until I am asked to. Is that right?

It depends on the rules of the particular court or tribunal. In the 19th Century all copying of documents was done by hand and so it made sense to provide a list first and only copy when asked. This approach continued in the 20th Century because photocopying was expensive too. Nowadays of course documents which will be used in a case are invariably scanned in (if not already on computer) and the cost of subsequently providing a copy in PDF form is minimal so there is no reason not to. The rules of most courts and tribunals today (including the Business and Property Courts and the First Tier Tribunal - Property Chamber - Land Registration) require copies of documents to be provided automatically on disclosure although there are still some courts and tribunals which only require copies to be sent on request. But even if the court/tribunal does not require copies to be sent automatically you should, nevertheless, as explained above, provide copies of the disclosed documents at the Disclosure of Documents stage without being asked (you exchange lists of documents with the other side and then you provide copies of the documents themselves immediately after you have received the other side's list). One reason for this is that if you make a clerical error in the date or document title of a document in the My Documentary Evidence DCS case, and therefore the generated document list contains an inaccurate description of the document, and you are not asked for, and do not provide, a copy of the document, the error may only come to light not long before the trial and you may be barred from using that document at trial on the grounds that it was not disclosed, whereas if you had sent a copy of it to the other side 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 provided to them at the time. 


What format should I send copies to the other side in?

Any audio or video files will of course be sent in their original format (e.g. mp3, mp4, etc.). Copies of other files are sent as PDF copies because PDF format is generally easiest to use and to incorporate in the eventual trial bundle, but you should, in addition, send the original jpg copies of digital photographs as well. The reasons for this, briefly, are as follows:
  • When making a PDF copy of a photo which has an area which is dark, you might have chosen an option to adjust the brightness so that that area is easier to see in the PDF, but that might have resulted in another area of the PDF copy of the photo (which perhaps the other side is particularly interested in) being too bright and therefore unclear for that reason. Providing a "native" copy of the JPG file allows the other side to print it with whatever options they need and/or look at it on a computer screen adjusting the brightness as necessary.
  • It is good practice when making a PDF copy of a digital photo to include in the PDF the camera make/model and date/time taken details in the EXIF data in the JPG file, but there are other EXIF details which the other side might wish to look at and sending the JPG file allows the other side to see these also.    
Digital photos and audio/video files are generally the only file types the other side are likely to seek but if they do ask for native copies of any other documents you should provide them. For further information on providing native copies, if requested, see here 


Before I had contacted the other party with a view to agreeing a future date for exchange of disclosure lists, the other party unexpectedly disclosed their documents (with copies of the documents themselves). I was not ready to disclosure documents at that stage but now, some days later, I am ready and about to disclose my documents. But now that I have copies of the other party's disclosed documents in my control, some of which I did not have before, do I have to consider whether to include those new documents I have received in my disclosure?

No, that is unnecessary and may cause confusion. Documents disclosed by the other side after commencement of litigation should be treated separately from the documents you are disclosing and should be loaded to the main DCS case (not to the My Documentary Evidence case) with a filename prefix (disclosure identification/number) which indicates that they are documents disclosed by the other side and not documents disclosed by you.

You can only use documents disclosed to you for the purpose of the litigation they are disclosed in and must keep them confidential unless the court/tribunal gives permission for you to use them in some other way such as in a different case (or unless they have actually been referred to at a public hearing). So for that reason also it is important to store documents disclosed to you for the purpose of the litigation with a prefix indicating that they were disclosed by the other side so that they are easily identifiable as documents disclosed by the other side. 


Before Disclosure of Documents was even ordered, the other side sent me copies of some documents, some of which I already had and some not. But as they are all in my possession now, should I load them all to the My Documentary Evidence case?

Courts and tribunals encourage a party considering starting proceedings, to the extent that they can without missing time limits or prejudicing their case by delay, to correspond with the other party so that the party being potentially taken to court/tribunal knows in general terms what the first party is claiming and why, so full consideration can be given to meeting the claim before the step of actually commencing court/tribunal proceedings occurs. During this "pre-action correspondence", and sometimes also in the early stages of proceedings before the Disclosure of Documents stage, there may be disclosure of key documents. This may be voluntary disclosure when a party sends copies of some historical documents they have to the other party before the court/tribunal has actually ordered, or the court/tribunal rules require, disclosure of documents, or the rules may actually require certain key documents to be provided before the main Disclosure of Documents stage. Sometimes, particularly if your opponent is not acting with the benefit of legal advice, it may not be precisely clear, when they are sending documents to you, whether they are doing that as part of disclosure or not, but it is important that there is clarity in your disclosure list as to what documents you already had and what documents you have received for the first time from the other side after legal proceedings had been intimated as part of what can loosely be called "early disclosure". Generally the best thing to do, when you receive, from the other side, before the main Disclosure of Documents stage, a document which is clearly being formally disclosed (e.g. a document attached to a formal pleading or sent with a letter saying is is by way of "disclosure") is to store it in the Documentary Evidence Disclosed Early by the Other Side DCS case, but if you receive a letter enclosing documents, which does not say it is "disclosure" you should scan in the letter as a PDF, together with the enclosed documents, all as one PDF, and load the PDF to the My Documentary Evidence DCS case with a document title of e.g. 

Letter Smith to Jones with enclosed documents

with the document date being the date of the letter (not the date of any enclosed document). In this way, when you disclose documents at the Disclosure of Document stage, the documents will be included but in such a way as to indicate which were documents you already had and which have only been received by you recently.

A similar approach should be taken if you receive, from the other side, an email attaching documents - i.e. the message part of the email (body) should be combined with the attachments in a single PDF which you then load to the 
My Documentary Evidence DCS case.

If early disclosure happens by the other side actually handing copies of documents to you, so that there is no covering letter or email, you should immediately type up a sheet saying The attached documents were handed to me by Mr Smith on [date] at approximately [time] at [place], scan in the documents with the sheet on top as a single PDF and the load the PDF to the My Documentary Evidence DCS case, giving it a document title of e.g.

Documents handed by Smith to Jones

with the document date being the date the document copies were handed over (not the date of the documents themselves).


If I have multiple copies of a probative document, do I have to disclose every copy separately?

Generally no. If the copies are identical then you just load one to the My Documentary Evidence DCS case. If the copies contain differences - e.g. one contains an annotation - then you would treat them as two separate documents (and load and disclose both) only if the difference is significant for the disputed issues in the case. If the difference is significant, load them both giving them different names - e.g.

Letter Smith to Jones (without annotation)

Letter Smith to Jones (with annotation)  


I have received a disclosure list and copies of the documents on it from the other side - what should I do now?

Make a careful record of what you have received.

If the other side have provided documents to you as individual PDFs (one PDF per document) or as a bookmarked PDF and have given each PDF (or bookmark) a meaningful name or the number of the document on a list they provide (or both) then this makes it easier to check for completeness. If the other side have provided you with PDFs which do not have meaningful names and it is not obvious which document is which, you can, for example, send a copy of a particular document back as a PDF saying – e.g. “please confirm that the attached document, which you sent to me, is item 71 on your disclosure list”. (If the other side have sent multiple documents in a PDF you will need to extract the relevant document from the single PDF before you can do this). 

Generally speaking a party has to provide copies of documents on its disclosure list unless it no longer has them and it no longer has control over them. If a party has sent documents to their bank, for example, those documents are still under their control because they have the power to require the bank to return them. And even if the bank is keeping documents as security for a loan, the party still has the power to require the bank to provide copies.

There may be indications in the documents provided by the other party that there are further documents they have which ought to be disclosed. For example they may have disclosed an internal email which responds to a report but have not disclosed the report itself. Or perhaps the body of an email is provided, and you can see from the header that there were attachments, but the attachments themselves have not been provided. Or you might have special knowledge which means that you know, or strongly suspect, that the other party has relevant documents which they have not disclosed. The other side has a duty to comply with any order the court/tribunal makes about disclosure, searching for relevant documents, but they may genuinely not be aware of the existence of certain documents until you specifically ask them to disclose them. For example if the other party is an organisation and you attended a meeting with them you may have noticed a particular employee of that organisation taking notes so you know that those notes exist but the person in the organisation dealing with its disclosure obligations may not be aware of that until you ask them to disclose those notes.      

Having checked that what has been disclosed is complete, and that it is clear which document is which, and having made sure you have complied with your disclosure obligations (which process will include loading all the documents you have disclosed, each one prefixed with disclosure identification/number commencing with C or D depending whether you are the Claimant or Defendant, into the Documentary Evidence section of the main DCS case) the next step is to load the documents which the other side has provided into the Documentary Evidence section of the main DCS case making sure that the PDFs loaded have names prefixed with a disclosure identification/number of C (if the other side is the Claimant) or D (if the other side is the Defendant).  

When loading the documents you should ensure that they are correctly named with a prefix giving the disclosure identification/number. For example if document number 12 from your opponent is Letter Smith to Jones, and your opponent is the Defendant, you would name the document D12 Letter Smith to Jones. Some courts/tribunals require a disclosure list to be provided but do not require the documents on it to be numbered: if you have a disclosure list from the other side and they have numbered the documents on it (and the PDF copies they have provided do not have a number in the file name) make a copy of it and, using a pen, write a disclosure identification/number by the side of each document on your copy and, for each document you load use the disclosure identification/number you have allocated for the prefix.

Some courts/tribunals allow or require the parties to attach certain key items of documentary evidence as an appendix to their pleadings at the start of the case, or may require a subset of key documents to be disclosed early as "initial disclosure". Also a party might voluntarily disclose some documents early as part of pre-action correspondence. You will have stored documents disclosed early in the Documentary Evidence Disclosed Early by the Other Side DCS case. It is good practice for the documents disclosed at the main Disclosure of Documents stage to include documents disclosed earlier (so that everything is on one complete list) but in case the other side has not done this you should check that the documents in the Documentary Evidence Disclosed Early by the Other Side DCS case are included in the documents you are loading. If there are extra documents in the Documentary Evidence Disclosed Early by the Other Side DCS case to be loaded and the other side has not numbered any of the documents it has recently provided, so that you yourself have had to allocate disclosure identification/numbers, then you simply allocate further numbers to these extra documents. If, however, the other side have allocated numbers to the documents recently disclosed, but not to the extra documents disclosed earlier, then you yourself will need to allocate numbers only to the extra documents and you should do so using an "x" - e.g. Cx2 - to distinguish between numbers you had to allocate and the main run of numbers allocated by the other side.     

As you are loading each document, check whether the document you are about to load is the same as a document you already had (and which, therefore, is already in the Documentary Evidence section). Sometimes the documents might have a significant difference such as an annotation but if the document is the same (except, perhaps, for something insignificant such as a line caused by the photocopying/scanning) then instead of loading the document, amend the prefix of the document already loaded as in the following example:

Suppose you are the Claimant and one of your documents in the Documentary Evidence section is 

C120 Letter Smith to Jones                   11 May 2015

And the identical document disclosed by the other side - the Defendant - which you were about to load is number 103 on the disclosure list provided by the other side. You would rename the above document

C120=D103 Letter Smith to Jones                   11 May 2015

and not load to DCS the copy from the other side.
 
Occasionally it may happen that the copy document which you had is of poor quality and the copy provided by the other side is of much better quality and in this case you might load up the copy from the other side giving it a name of

         D103=C120 Letter Smith to Jones                   11 May 2015 

and then you can delete from DCS the poor quality copy you had (after, of course, double checking that you have a backup copy of it in the PDF copies of my disclosure lists and disclosed documents folder on your computer).

Sometimes it happens that two copies appear identical but a significant difference is noticed later so it is important whether the prefix is C120=D103 or D103=C120.

If there are a lot of documents then checking each one to see whether it is the same as one already loaded might be time-consuming and if you do not have much time (e.g. because it is important for the documents to be load up so that they can be provided to a barrister for advice about merits and evidence so that action can then be taken before a deadline) then you can, if you wish, load up the documents without checking for duplicates (though the barrister's fee for advice may then be higher because they will have more work to do in advising) but sometimes it may actually save time to check for duplicates. For example if you have been provided with copies not as one PDF per document with suitable names (or in one large PDF with suitable bookmarks) but rather in paper form (or all in a single PDF without suitable bookmarks) then it may actually be easier to first check them to see whether they are the same as documents already loaded (particularly if a large proportion of them are) so that you only have to scan in, name, and load up those which are additional or different. 


You should consider whether you need to challenge the authenticity of any documents disclosed by the other side. You can do this once you have loaded the documents to the Documentary Evidence section of the main DCS case or as you are loading documents, whichever you find easier. There is a difference between the authenticity of a document and whether what the document says is true. For example, say the other side had disclosed a letter written to you at some time in the past, complaining that you had caused an obstruction by parking your car in a particular place at a particular time on a particular date. If you received the letter at the time but you dispute the accuracy of what it says, the letter is still authentic – i.e. it is a genuine copy of a letter actually written on the date it bears. If, however, you think that the letter is a fabrication – that it is not a genuine copy of a letter written on the date it bears because, say, you didn’t receive it at the time and it gives as your address an address which you didn’t move to until a year after the date the letter was supposed to have been written - that would be an example of a document which is not authentic. 

Different courts and tribunals have different rules about how and when to give notice that, at trial, you require the other side to call a witness to explain what a document is and where it came from, so that you can cross-examine the witness. Sometimes a notice in a particular form has to be served by a particular date otherwise you are deemed to admit authenticity. In some courts parties only have to provide copies of documents on their disclosure list on request, and then only if the other side agree to pay their reasonable copying charges, but if you do not request copies of all documents disclosed you run the risk of being deemed to admit authenticity of documents you would have disputed if you had seen them. If there are a lot of documents so that copying charges would be substantial, one way round this is make arrangements to physically view all the documents and then decide which you need copies of.   

 

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 ongoing legal duties which last until the end of the case so that if, for example, you are ordered to 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 may 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 (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 by an investigator you engage, they produce another historical deed for the property which you have not seen before and hand it over or allow a copy to be taken. In this case you have to disclose the document straightaway even before witness statements are exchanged. 

Sometimes it happens that something causes you to think further about the issues in the case and you then realise that a document which you are aware of which you previously thought did not need to be disclosed does in fact need to be disclosed. 

To disclose further documents to the other side, first load the further documents into the My Documentary Evidence DCS case. If the My Documentary Evidence case no longer exists - because its contents have been copied to the main DCS case and it has been deleted - load the further documents into the appropriate section of the main DCS case. Make sure that the document names assigned in DCS to the further documents start with a disclosure identification/number which continues in sequence from the previous highest number. Create a sub-folder on your computer named with today's date and then download a copy of each of the further document from DCS in PDF form into the subfolder. Then send the PDF copies which you have downloaded to the other side with a communication saying "In compliance with my continuing duty of disclosure I attach further documents". 

What if I am obliged to provide copies of documents before the Disclosure of Documents stage?

The My Documentary Evidence DCS case will, at the time when the Disclosure of Documents stage is completed, contain all the documents you have disclosed. In the period between commencement of litigation and the Disclosure of Documents stage you will be adding documents, from time to time, to the My Documentary Evidence DCS case. For example pleadings typically refer to key documents and any document actually referred to in your pleadings should be loaded to the My Documentary Evidence DCS case. And typically you will be aware of other key relevant documents as part of the process of seeking legal advice and/or applying for early interim relief, and these can be loaded also so that there is less to do later on at the Disclosure of Documents stage itself. 

You might be be obliged to provide copies of a few documents to the other side before the main Disclosure of Documents stage - for example usually the court/tribunal rules give the other side a right to ask for copies of any document specifically referred to in your pleadings - and, if so, you should make sure that the documents are loaded to the My Documentary Evidence DCS case and then provide a copy to the other side from the DCS case by downloading a copy from DCS in PDF form and emailing it to the other side. Doing it this way ensures that the My Documentary Evidence case always contains copies of all documents which have been, or will be, disclosed.

If you are obliged to provide copies of quite a number of documents to the other side before the main Disclosure of Documents stage - for example if the court/tribunal rules require you to provide "Initial Disclosure", at the same time as your pleadings, of key documents relied on, whether expressly or not, in support of your pleaded claims or defences - then you should make sure that the documents are loaded to the My Documentary Evidence DCS case and provide a copy to the other side using the procedure explained hereDoing it this way ensures that the My Documentary Evidence case always contains copies of all documents which have been, or will be, disclosed.

A native copy of any electronic document you provide a PDF copy of may be requested by the other side and, if it it, you should provide it as well. For further information on providing native copies, if requested, see here.         

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. 


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 folders 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. 


Why do courts and tribunals order disclosure of documents in advance of the trial?

At a trial in a civil 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 or tribunal will normally order the parties, at an early stage of the litigation, to disclose - i.e. tell each other - which documents they will or might be using at the trial. One reason why the court/tribunal orders documents to be disclosed well before the trial is so that each party can properly prepare for the trial - for example which witnesses a party needs to use and what matters a witness needs to address in their witness statement depends to some extent of what documents will be, or might be, used at trial. 

Another reason for disclosure of documents in advance in that the parties can ask their barristers whether, in the light of all the document disclosed, the barrister's opinion on the likelihood of success has changed. If one party is advised that in the light of the documents they are less likely to succeed then it may be that the parties will settle the case. A case can be settled at any time by agreement between the parties but often the sticking point when parties are considering settling late in the day is who is going to pay the legal costs which both sides have incurred so far, so having early disclosure of documents allows the parties - if they wish - to try to reach a settlement before the full amount of legal costs of the case has been incurred.

In the past, it was the case that before any document could be used in court it had to be "proved" at the trial by a witness giving evidence about what the document was, how it came to be created, etc. and a great deal of time could be taken up formally proving documents. In modern times there has been a move away from the requirement to formally prove every document in certain types of court/tribunal. Formal proof may still be needed in criminal cases, for example, but in many civil courts and tribunals the rules seek to avoid too much time being taken up with formal proof of documents while at the same time seeking to safeguard the rights of the parties. A common rule is that a party is taken to have admitted the authenticity of all documents disclosed to it unless the party sends a formal notice disputing the authenticity of specific documents. The idea is that only those formally disputed documents have to be formally "proved" at trial thus saving time at the trial. This is a further reason why civil courts/tribunals normally order disclosure of documents in advance of the trial.

Note: There is a difference between the authenticity of a document and whether what the document says is true. For example, say that among the documents which the other side discloses to you is a letter written to you at some time in the past, complaining that you had caused an obstruction by parking your car in a particular place at a particular time on a particular date. If you received the letter at the time but you dispute the accuracy of what it says, the letter is still authentic – i.e. it is a genuine copy of a letter actually written on the date it bears. If, however, you think that the letter is a fabrication – that it is not a genuine copy of a letter written on the date it bears because, say, you didn’t receive it at the time and it gives as your address an address which you didn’t move to until a year after the date the letter was supposed to have been written - that would be an example of a document which is not authentic.

As well as ordering disclosure of documents which you will (or may) be relying on at trial, the court/tribunal will typically (by rules or by specific direction) order you (usually at the same time but sometimes at a slightly later stage) to search for and disclose additional documents - so that the other side can rely on any of those additional documents at trial if it wishes to do so. Similarly the other side is likely to be ordered to disclose to you not only the documents they propose to rely on but also some additional documents. When ordering parties to disclose documents the court/tribunal may directly identify the documents to be disclosed by describing them:

"Mr Smith must disclose all invoices sent to Mr Jones between between 1/1/1998 and 31/12/2004"

or the court/tribunal may identify the documents to be disclosed indirectly by reference to an issue in dispute:

"Mr Smith must disclose all documents which are or have been in his control which support or undermine his contention that a completion date of 1st November was agreed for completion of the building work."   

The court/tribunal may also authorise the use of data culling measures at the point of document collection, such as date ranges and keyword searches, to limit the number of documents which the disclosing party then has  to review.



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 August 2019. Disclaimer