Disclosure of Documents



Introduction to disclosure of documents

At a trial in a civil case a Trial Bundle will be produced containing all the documents which the parties wish the court 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. 

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 - at least not without special permission from the court/tribunal.

As well as disclosing documents which you will (or may) be relying on at trial, the court/tribunal will typically order you to disclose additional documents in case the other side wishes to rely on any of those additional documents at trial. 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.

Exactly what additional documents each side will be ordered to disclose depends on the particular court or tribunal and the type of case but normally the court's/tribunal's orders will be of one of the followings kinds.

A. The court/tribunal may order a particular class or description of documents to be disclosed - e.g. "All invoices sent to company X between 1/1/1998 and 31/12/2004"

B. The court/tribunal might order you to disclose every document which is, or has been, in your possession or control which probative of (i.e. relevant to) any disputed issue in the case.

In the case of an order for general disclosure - B above - you have to work out what documents are relevant and disclose them. By contrast if there is an order for specific disclosure - A above - the court has already decided that the specified documents are, or might be, relevant and all you have to do is look for the specified documents and disclose them.

Before explaining the process of disclosure in more detail, I first need to explain what a privileged document is, because privileged documents are treated differently. If the court's/tribunal's order covers any privileged documents then you do not disclose them but rather you claim privilege. It is then up to the other side to challenge your claim to privilege if they want to.     

If you engage a solicitor, your solicitor will carry out the disclosure process for you but if you engage a barrister directly then you will need to go through the documents you have and decide which documents need to be disclosed. This involves asking yourself three questions about each document:

1. Is this a document I want to (or might want to) rely on at trial?

2. If not, is this a document which the court/tribunal has ordered to be disclosed?

3. If the answer to 2 is yes, then is this document privileged?

Note that you do not need to decide whether a document in 1 is privileged or not. This is because it is up to you whether to claim privilege or not - you can always waive privilege in a document if you want to be able to use it at trial.

Privileged documents

The idea of documents being privileged is common sense when you understand it but takes a little bit of explaining. 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 provided to the other side is obvious: it would give a party an unfair advantage to see advice about the strengths and weaknesses of your case, and if written advice had to be handed over 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. Legal advice is privileged even if there is no litigation (actual or contemplated) and you are just seeking advice on what your legal rights and duties are. 

After litigation has commenced (or is being considered) there will be things you write down not only for the purpose of getting legal advice, but simply in order to help you do what is necessary for the litigation process itself - e.g. making a list of things you need to do to comply with a court direction, or writing down your recollections of past events for eventual inclusion in a witness statement. As you would expect the law does not require you to show what you have written down to the other side, and such documents created for the purpose of litigation are also privileged. When you exchange witness statements with the other side, by sending the final signed witness statement to the other side you are "waiving" (giving up) privilege in that document but all your earlier drafts and notes (made after litigation was first contemplated) remain privileged. Photos are "documents" and the same principle applies: any photos you take for the purpose of litigation are privileged so that you do not have to disclose them but, of course, normally you would choose to disclose them at the disclosure of documents stage (and so "waive" privilege) because you want to be able to use them at trial to help prove your case. 

The court/tribunal will not specifically order privileged documents to be disclosed but if the court/tribunal makes a general disclosure order - as in B above - it is highly likely that some documents which come within the terms of the order will happen to be privileged so you have to be alert to spot privileged documents and claim privilege. It is also possible - though less likely - that some documents which come within the terms of a specific disclosure order - as in A above - will be privileged so you need to be able to spot them in this case also.
 
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.

It is important to understand which documents are privileged and which are not particularly if the court/tribunal orders you to disclose all probative 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.

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 the step of actually starting the court claim a ‘letter before action' should be written to your neighbours saying 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 take a witness statement for your witness (the previous owner) and the lawyer uses the detailed letter written by the witness in April to help 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.

THE ANSWERS

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, and your purpose in obtaining them, is in connection with litigation but it is why they were initially created (taken) by their creator 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.

Which documents should be disclosed

Usually the court/tribunal will either make an order for specific disclosure - e.g. "All documents you intend to rely on and all invoices sent to company X between 1/1/1998 and 31/12/2004", or make an order for general disclosure - e.g. "All documents you intend to rely on and every document which is, or has been, in your possession or control which is relevant to any disputed issue in the case"

Note: in some court cases the court orders the parties to provide initial disclosure reports giving an overview of what documents there are or may be and, after considering the reports, the court decides whether to order general disclosure or specific disclosure.

General Disclosure


If the court or tribunal makes an order for general disclosure (called "standard disclosure" in a court subject to the Civil Procedure Rules) then, having worked out what documents are privileged and which documents are not privileged, it is easy to work out what documents should be disclosed, using the following rules

1. Every non-privileged document which supports your case must be disclosed

2. Every non-privileged document 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 other 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.

Note: a "document" is 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.

If you are in doubt whether a few non-privileged documents are probative you can disclose them anyway to be on the safe side and ensure you have complied with your legal duty. But bear in mind that the court or tribunal expects you to be sensible and not disclose large amounts of documents which are obviously irrelevant because that would unnecessarily increase everyone's legal costs - your costs as well as the other side's costs because, immediately after both sides have disclosed documents, you will normally be asking your barrister to update their advice on the strength of your case in the light of those documents and the more documents there are to be considered the more that advice will cost. You might not think that it matters that you are increasing the other side’s costs but it might do. Nothing in litigation is certain. It is not just that if you lose you would normally be ordered to pay the other side’s costs. If you win party, but not as well as an offer you turned down, you might have to pay the other side’s costs incurred after you turned down their offer. So it is wise not to increase the other side’s costs unnecessarily.  

The written Opinion you have received from a barrister, when advising you about the case in the past, will indicate particular documents which are probative but you need to decide whether other documents you have are also probative. Barristers do not expect to be asked to advise which additional documents you have are probative - that is something you have to decide for yourself (if you are not engaging a solicitor) erring on the safe side as explained above. This is because barristers maintain their skills in advocacy, drafting and giving legal advice by concentrating on those areas and if they gave extensive time-consuming advice during the disclosure of documents stage, that would detract from the specialised nature of a barrister's practice. 

If you do not feel able to carry out the disclosure of documents process without assistance then you would need to engage a solicitor to carry out the process for you.    

For a more detailed explanation of the process of general disclosure of documents, see here 

Specific Disclosure


If the court or tribunal makes an order for specific disclosure then it is easy to work out what documents should be disclosed, using the following rules

1. Every document which you wish to rely on at trial must be disclosed but...

2. Don't disclose any correspondence with your lawyer or any written advice from your lawyer – that is privileged

3. Don't disclose without prejudice correspondence - i.e. correspondence in which settlement offers are made and responded to - that is privileged  

4. 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

5. Do disclose all documents which the court/tribunal has specifically ordered to be disclosed (unless you are claiming privilege for particular documents).

6. 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 you wish to rely on it to support your case or if it comes within the court's/tribunal's order for specific disclosure.)

Note: a "document" is 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.

The written Opinion you have received from a barrister, when advising you about the case in the past, will indicate particular documents which are probative and will help to prove your case but you need to decide whether other documents you have may also help your case. Barristers do not expect to be asked to advise which additional documents you have are probative - that is something you have to decide for yourself (if you are not engaging a solicitor). This is because barristers maintain their skills in advocacy, drafting and giving legal advice by concentrating on those areas and if they gave extensive time-consuming advice during the disclosure of documents stage, that would detract from the specialised nature of a barrister's practice. 

If you do not feel able to carry out the disclosure of documents process without assistance then you would need to engage a solicitor to carry out the process for you.        

For a more detailed explanation of the process of specific disclosure of documents, see here 

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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. 

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This page was lasted updated in September 2017. Disclaimer