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 review them first? 
    2. 5.2 A few days ago I received the other party disclosed their documents and I am about to disclose my documents. But now that I have copies of the other party's disclosed documents in my possession, 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?
    3. 5.3 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?
    4. 5.4 Should I load video and audio files to My Documentary Evidence case?
    5. 5.5 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?
    6. 5.6 What format should I send copies to the other side in?
    7. 5.7 If I have multiple copies of a probative document, do I have to disclose every copy separately?
    8. 5.8 What should I do if further documents come to light after I have sent out the Disclosure List?
    9. 5.9 What if I am obliged to provide copies of documents before the Disclosure of Documents stage?
    10. 5.10 Do I have to disclose correspondence between myself and my barrister?
    11. 5.11 It all sounds a bit complicated. Can I ask a barrister to carry out the disclosure of documents process for me?
    12. 5.12 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 or will be referred to in witness statements, but not the 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 only requires a limited search you will probably 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 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 be 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, for particulars kinds or documents in your control or for documents in your control relevant to some or all disputed issues in dispute in the case, and you must load into the My Documentary Evidence case every document of the kind (or relating to the issue) the search was ordered for 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 a person who is or may be a witness, 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 any other 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 made by the court/tribunal were, most documents not covered by 1 may already 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. Add Disclosure Identifcation/Numbers to each document in the My Documentary Evidence case

8. Send the documents, in the My Documentary Evidence DCS case, in the form of a single bookmarked PDF (together with a list - "index"- in PDF form which DCS generates automatically) to the other side (as an email download link). Also send exactly the same bookmarked PDF and list to your own email address so that you have a copy as explained here.

9. You will need to formally serve some kind of disclosure statement/certificate on the other party giving e.g. details of documents you used to have but no longer have and other information. The exact form of this statement/certificate will depend on the rules of the particular court or tribunal but an example to give the general idea can be found 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 review them first? 

When a Trial Bundle is being prepared for the eventual trial, the court/tribunal expects the parties to be reasonable about what previously-disclosed documents each party requires to be included in it and to be considered by the trial judge, because including large numbers of unnecessary documents wastes court/tribunal time (as well as increasing each party's costs). But 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 which are clearly irrelevant 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 doing some reviewing of documents anyway it is more cost-effective if it is you, rather than the other party, which, at the same time, reviews the documents for relevance.

A few days ago I received the other party disclosed their documents and I am about to disclose my documents. But now that I have copies of the other party's disclosed documents in my possession, 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 loaded to the Documentary Evidence Disclosed by Other Side case not to the My Documentary Evidence case.

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 in the Documentary Evidence Disclosed by Other Side case and not put them in the My Documentary Evidence case.  


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 that full consideration can be given to meeting the claim before the step of court/tribunal proceedings is actually taken. 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 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 Disclosure of Documents stage, a letter enclosing documents, is to scan in the letter as a PDF, together with the enclosed documents, 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

and 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).


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

No but you should load a placeholder. It is possible to load video files (e.g. mp4 files) and audio files (e.g. mp3 files) into DCS. If you do this, DCS creates a placeholder page containing a hyperlink to the video or audio file within DCS. However generally speaking you do not want to grant your opponent even read access to your DCS cases so you should, rather than loading video and audio files to DCS, instead store the audio and video files themselves outside of DCS in cloud storage and, for each video or audio file you yourself should create a one page placeholder with a view/download-only link to the audio/video file. The placeholder page will look something like this:




Save the placeholder file with a suitable name - e.g.

Video of Farm Buildings                                17 Jun 17

and store only the placeholder page in the My Documentary Evidence DCS case. This ensures that when you generate a Disclosure List from DCS the list includes the audio and video files, and also means that the other side, when they receive your disclosure list (and a bookmarked PDF containing the documents including, for video and audio files, the placeholder pages), will be able to view the video file (or listen to the audio file) by clicking the link in the placeholder page without having any access to your DCS case.

No alterations should be made to video/audio files: for example just as a description should not be superimposed on a photo if it was not like that before litigation began, so a video should not be edited to include titles if they were not there originally. 

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 scanned in and the cost of subsequently providing a copy of a PDF 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) require copies of documents to be provided on disclosure but 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 (if you prefer you can just provide the list initially and wait until you have the list from the other side before you provide copies of the documents, but make sure you still provide the copies of the documents themselves, within two or three weeks of providing the list, even if not asked to). 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 just 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?

As explained above, you should initially send copies of all the disclosed documents in a single large bookmarked PDF. PDF format is generally easiest to use and to incorporate in the eventual trial bundle. If an original document is in a different format - e.g. a digital photo in JPG format - the other side might ask you to provide a copy of that specific document in its original (native) format and, if so, you should do so. The other side do not have to tell you why they want a native copy but these are some of the reasons why they might want a native copy:
  • Sometimes unscrupulous people produce a PDF copy which has been deliberately altered in some way. It is actually quite rare for this to happen but the possibility that it might have happened is one reason why a native copy might be asked for.
  • The process of producing a PDF copy can sometimes involve choosing different options. For example, 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. If the photo is an old (non-digital) photo which you only have in paper/card form, the other side may ask you for a better PDF copy made using different options, but if it is a digital photo it may be easier for them to ask you for a native copy of the JPG file so that they can make their own PDF copy with whatever brightness adjustment they choose and/or look at it on a computer screen.
  • It is good practice when making a PDF copy of a digital photo to choose options which mean that the photo size is adjusted (leaving the aspect ratio unchanged) so as to be slightly smaller than A4 size leaving a good white margin (particularly at the top and bottom of the PDF page) and for the camera model and date/time taken details in the EXIF data in the JPG file to be included in the PDF in the top right within the white margin. Again if this is not done the other side could ask for a further PDF copy including this information but they may prefer to simply ask for a native copy of the JPG file so that they can see all the data in the JPG for themselves.                    

A native copy of any electronic document on your disclosure list may be requested by the other side but the most common documents for which native copies are requested are JPG digital images. A good way of providing native copies of JPG digital photos is to load them from the device (e.g. phone) they were taken on direct to Canon Irista. It is generally best to upload digital photos to Irista direct from the device they are on (e.g. by installing the Irista app on the device) rather than by attempting to copy the JPG files to another device before uploading to Irista because copying can, depending how it is done, sometimes result in the EXIF data being missed off the copy. Apple devices, in particular, are prone to lose EXIF data when copying. For a similar reason it is best, when providing native copies to the other side, not to send copies as email attachments (especially not from an Apple device) but rather to add the photos to an album in Irista and share the album with the other side so that they can view and download. Before sharing the album, go through each photo in it and check that the camera make/model and date/time taken EXIF data is present.      

For further information on providing native copies, if requested, see here

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)  

 

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, they produce another historical deed for the property which you have not seen before and give it to you or allow you to take a copy. In this case you have to disclose the document straightaway even before witness statements are exchanged. 

Sometimes it happens that something causes you to think further about the issues in the case and you then realise that a document which you had not disclosed -- e.g. because you did not think it was adverse to you case - in fact is adverse. 

To disclose further documents to the other side you need, as a minimum, to send the other side a communication which directly identifies the further documents you are disclosing. Particularly if there are only one or two further documents to be disclosed you could (after loading them to the My Documentary Evidence DCS case so that that case is always in sync with what you have actually disclosed) send PDF copies of the documents with a communication saying "In compliance with my continuing duty of disclosure I attach further documents" but the other side would be within their rights to ask you to provide an actual list of the further documents. The easiest way to do this is (after loading the new documents to the My Documentary Evidence DCS case) to send a complete new list of documents ("Index") in PDF form for all the disclosed documents (both those disclosed in the past and ones you are now disclosing) using the procedure explained above under How to Disclose Documents at the Disclosure of Documents Stage but instead of attaching a Disclosure Statement to the list of documents before serving it on the other side (as you did with the original disclosure) you should instead attach a covering letter saying: e.g.

"In compliance with my continuing duty of disclosure I attach an updated list of documents. The new documents now disclosed are those numbered C50, C51 and C52. I am also emailing to you a link to enable you to download copies of the documents. For completeness the link provides a bookmarked PDF containing all the documents disclosed, both those disclosed in the past and the further documents I now disclose."


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. 

If you are obliged to provide a copy of some document to the other side before the Disclosure of Documents stage - for example if the court/tribunal rules give the other side a right to ask for copies of any document referred to in your pleadings, or require you to provide, with your pleadings, copies 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 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. To help you you might decide to have two sections in the My Documentary Evidence DCS case, one for key documents and one for other documents.

If the other side have a right to ask for a copy of a document, they might ask you to send them a native copy of the document - for example if the document is a digital photo the other side might ask you to send a copy in its original form as well as (or instead of) a PDF copy. The most common documents for which native copies are requested are JPG digital images. A good way of providing a native copy of a JPG digital photo is to load it from the device (e.g. phone) it was taken on direct to Canon Irista. It is generally best to upload a digital photo to Irista direct from the device it is on (e.g. by installing the Irista app on the device), rather than by attempting to copy the JPG file to another device before uploading to Irista, because copying can, depending how it is done, sometimes result in the EXIF data being missed off the copy. Apple devices, in particular, are prone to lose EXIF data when copying. For a similar reason it is best, when providing a native copy to the other side, not to send the copy as an email attachment (especially not from an Apple device) but rather to create an new album in Irista, add the photo to it, and share the album with the other side so that they can view and download the photo. Before sharing the album, check that the camera make/model and date/time taken EXIF data is present on the photo in the album and check that the album only contains those photos you are obliged to disclose at this stage. 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 disk 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 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 December 2018. Disclaimer