Disclosure of Documents

Introduction to Disclosure of Documents

For the final hearing (trial), at the end of the case, an eBundle will be produced containing all the documents which the parties wish the tribunal to consider. In order to ensure fairness to both parties the tribunal will order the parties, at an earlier stage of the litigation, to send each other copies of documents which they will or might be using at the final hearing. The parties do not have to eventually include in the eBundle, and use at the final hearing, every document disclosed. It might be decided not to use some disclosed documents after all. But normally you cannot use at the final hearing any document in your possession which has not been disclosed on time - at least not without special permission from the tribunal.

You have to disclose:

1. the documents you will (or may) rely on at the final hearing, and

2. the tribunal will usually also order each party to disclose all other documents in its possession or control which have a bearing on the case. 

It might be thought that the set of documents in 1 would be the same as the set of documents in 2, and that is true to a large extent, but you have to consider both 1 and 2 because, for example:-

• If you claim that a document is privileged you do not have to provide a copy of it under (2) but you might choose to provide a copy of it under (1) so that you can use it. For example in a case concerning land you might have taken, after litigation was intimated, quite a number of photographs, with many similar photographs taken on the same occasions. All or most of these may be privileged. By contrast fewer (unprivileged) relevant photographs may have been taken before litigation was intimated. Whilst you have to disclose all the relevant photos taken before litigation, you only have to disclose those taken after litigation was intimated which you will or may want to rely on to help prove your case. So you can save work (for both you and the other side), if a lot of similar photos were taken on each occasion, by only waiving privilege and disclosing one or two of them for each occasion. 

• There might be a document which, although it does not shed any light on any issue in dispute (and so does not come under (2)), would nevertheless be useful to help  the judge and others at the final hearing  "get their bearings". For example there might be a Google Earth satellite image which, because of tree cover, does not shed any light on whether or not a particular structure in dispute existed on the ground at the date of the image, but the image might nevertheless be useful to give everyone an appreciation of the general layout of the land, so you might decide to provide a copy of it under (1).       

• Under (2) the tribunal will only order you to disclose documents which are in your possession or control. Documents in your "control" includes documents which someone else (e.g. your  bank or mortgage company) is holding for you or which someone (e,g. an accountant or employees) created whilst working for you, but you won't be ordered to, for example, search for documents in public registers or ask independent individuals whether they have relevant documents. But you might choose to make further searches anyway, looking for documents which might help your case. 

• Although you don't have to carry out "voluntary" searches, if you do decide to do so and that results in copies of further relevant documents coming into your possession or control, you have to disclose them (under 2) even if you yourself do not, in the event, intend to rely on them at the final hearing (under 1).

• Generally speaking if you do choose to make further "voluntary" searches (for documents not currently in your possession or control) you are expected to carry out those searches before the deadline for disclosure. If you delay any "voluntary" searches until after the deadline and then ask the tribunal for permission to use extra documents found the tribunal may refuse permission on the ground that you should have searched earlier. Of course if it is the other side which produces a document (or writes a letter) after the deadline and it is you who want to rely on it, the tribunal may well allow that.          

• Relevant documents under (2) include documents you have 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 not properly adjusted and is suing you for damages. And suppose that the machinery was tested in your factory and the printout (printout A) showed that it was not properly adjusted, and one of your technicians 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 adjusted 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, since 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 technician as a witness and, in his statement, the technician 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.

(Note: as well as specialist tribunals, civil courts also often use a Disclosure of Documents procedure. Generally specialist tribunals have specialist judges and deal with specific specialist areas of law (such as Land Registration) and in most specialist tribunal cases there are not a huge number of relevant documents. Civil courts, on the other hand, deal with a great variety of different areas of law and whilst in most cases in the civil courts there are not a huge number of documents, in a significant minority of civil court cases there are a very large number of potentially relevant documents in the possession of the parties. In order to try to keep costs to a reasonable level civil courts have developed special procedures by which the parties can agree (with the court finally deciding in the absence of agreement) to limit the searches which need to be carried out for relevant documents. And the question of limited searching, and use of special procedures, has to be considered and documented for all civil court cases even if eventually it is decided that use of such special procedures and limits would actually be counter-productive. Consequently although the general idea of disclosure of documents in the civil courts is similar to that in other tribunals, there are additional complications, and differences of detail, in the court procedures. A further difference is that in the civil courts privileged documents have to be listed in a special section of the disclosure list even if you are not waiving privilege. They are listed by groups - not as individual documents - and copies are not provided. The other side might apply to the court for an order that copies of particular documents for which privilege is claimed should be provided if they can persuade the court that they are not actually privileged after all under the legal rules which determine whether a document is privileged.  This article is concerned with disclosure of documents in specialist tribunals where there is an order for disclosure of all relevant documents and where in general privileged documents are not required to be included on the list.)   

Note that a "document" is anything in which information of any description is recorded so letters, emails, instant messages, photos, and plans are all documents. Even an audio or video recording - e.g. an MP3 or MP4 file - counts as a document.

You should never (except under very unusual circumstances) send the other side a copy of any legal advice you have received (or any correspondence with a barrister or solicitor - unless transaction correspondence some of which may not be privileged). You do not have to provide a copy because it is legally privileged and you should not waive privilege and provide a copy because a legal 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.

At the Exchange of Witness Statements stage each party will exchange with the other party witness statements taken from that party and from their witnesses who are to give evidence at the final hearing. If, as is usual, the deadline for the Exchange of Witness Statements stage is after the deadline for the general Disclosure of Documents stage, you should make sure that you do not, when disclosing documents, accidentally disclose prematurely witness statements which you are due to exchange later on. But bear in mind that

• Generally if a witness statement refers to documents then those documents should be disclosed at the Disclosure of Documents stage. It is only the witness statement itself whose sending is delayed until the Exchange of Witness Statements stage. When a witness statement is sent at the Exchange of Witness Statements stage it will typically be accompanied by copies of the documents it refers to labelled with exhibit marks for easy reference, but copies of those documents (generally unlabelled copies) should already have been sent at the Disclosure of Documents stage. 

• Sometimes a witness may take a copy of a photo or plan and make a mark on it such as an arrow pointing to some feature that they are going to refer to in their statement. They may then exhibit both the original (unmarked) photo or plan and also separately exhibit the marked photo or plan. In that case the original unmarked photo or plan would be disclosed at the Disclosure of Documents stage but the plan or photo which the witness marked (assuming they marked it recently for the purposes of the litigation and not some time ago for some other reason) would be sent for the first time with the witness statement at the Exchange of Witness Statements stage.    

• Exchanging witness statements at a date later than general disclosure of documents only applies to witness statements produced for the current proceedings which are to be exchanged (and are therefore privileged until exchanged). Sometimes there are statements, statutory declarations,  or affidavits made in the past - not specifically made for the current proceedings but obtained e.g. from the Land Registry -  which are relevant and these would be disclosed, with other documents, at the normal disclosure of documents stage. Also sometimes statements are made and served in the current proceedings before the disclosure of documents stage - e.g. in support of an application to the Land Registry before the Land Registry referred the matter to the tribunal - and these would also be disclosed at the Disclosure of Documents stage if not before.

In a case where expert witnesses (e.g. surveyors, engineers) are to give evidence the experts will generally write and sign reports (rather than providing witness statements) and their reports will usually be exchanged by a deadline which is after the deadline for Disclosure of Documents (in fact usually after the exchange of Witness Statements). As with witness statements, such expert reports should not be disclosed prematurely. Note that exchanging expert reports at a date later than general disclosure of documents only applies to expert reports produced for the current proceedings (and therefore privileged until served). Expert reports made in the past (not specifically made for the current proceedings) are usually not relevant but sometimes they could be relevant (e.g. if they shed light on someone's belief or the reasonableness of it in a case where belief is relevant) in which case they would be disclosed, with other documents, at the normal disclosure of documents stage.

How to Disclose Documents

1. In the months before the main Disclosure of Documents stage some relevant documents you have will already have been identified - e.g. in a barrister's Opinion - and you can start by loading these relevant documents into a document management system, making sure that for each of your documents which you load you indicate that it is your document rather than your opponent's document (e.g. use an A if you are the Applicant or R if you are the Respondent). See here for how to load documents if you are using Bundledocs. If a document has already been exhibited - e.g. it has been used as an exhibit with a statement which has already been submitted e.g. in an application to the Land Registry - you can load that copy with the exhibit mark label if it is as good quality as any other copy you have, but if the copy with the exhibit mark label is of poorer quality than another copy you have, load both.  

2. By the time you are approaching the deadline for the main Disclosure of Documents stage you should have loaded all your other relevant documents which are not privileged (and privileged documents where you intend to waive privilege and disclose) making sure that A is specified if you are the Applicant or R if you are the Respondent. By this time the other side might already have disclosed some documents to you and you should have made sure that when loading those documents that you specified A if the other side is the Applicant or R if the other side is the Respondent. 

3. If you have loaded documents to Bundledocs because you considered at the time that they might be relevant, but you were not sure, now is the time to decide whether they are relevant or not.

4. Electronic documents - i.e. documents which you originally had as computer files (or files on a phone or tablet) - as distinct from paper documents which were scanned in as PDFs only because of the litigation - may contain metadata  which you may wish to rely on. For example if a photo was taken using a phone/camera option which caused the date and time to appear as part of the actual image then that proves when it was taken but, if not, for those photos which you intend to rely on you will want to make an image and metadata PDF "print" to prove the date/time taken and load that (remembering to specify A or R). Typically you would then move the JPG in the document mangement system to become a sub-document of the PDF "print" which was made from it.

Generally you only need to do this for JPG photos which you will be relying on - not for JPG photos you are disclosing just because they are relevant but do not yourself propose to rely on. If the other side wishes to rely on the metadata in those other JPGs which you will not be relying on they can produce their own image and metadata print.     

 5. Just before Disclosure of Documents you should temporarily set all the other side's documents to a status of Excluded (e.g. if the other side is the Respondent set all documents with R specified to Excluded) so that it is only your own documents which are included in your disclosure.

6. For convenience you might have been loading inter-partes correspondence to a section in Bundledocs whenever it is sent or received (if the case has been referred to the tribunal by a body such as the Land Registry you also have loaded previous correspondence with the Land Registry to that section as well). If so you should make sure that section is set to Excluded. If there are any individual items within the section which happen to be relevant to the issues which will be decided at the eventual final hearing, move them to another (Included) section  

7. The following, in particular, are privileged so do not load the following:-

• written advice from your barrister or any other lawyer and correspondence with your barrister or other lawyer (unless transaction correspondence some of which may not be privileged)

• without prejudice correspondence - i.e. correspondence in which settlement offers are made and responded to

8. As explained above the Tribunal will typically order that witness statements, to be exchanged in the proceedings, will not be exchanged until a date which is several weeks after the Disclosure of Document stage. This is so that each side can decide, in the light of what the disclosed documents show, what witnesses are needed and what topics their statements need to cover. So signed witness statements are normally only available after the Disclosure of Documents stage. It is possible, however, that there might be a signed statement of a witness which is available early - for example a witness statement produced when a request was made for a temporary interim injunction to preserve the status quo pending the final hearing. If there do happen to be any witness statements loaded to Bundledocs which are not due to be exchanged until a later date you should make sure that they are in a new temporary section named WITNESS STATEMENTS TO BE EXCHANGED LATER  and set that section to a status of Excluded so that the witness statements are not disclosed prematurely.  

9. Similarly the Tribunal will typically order the report of an expert which you have instructed in connection with the litigation to be exchanged later - usually a few weeks after exchange of witness statements - so you do not need to load expert reports until after the Disclosure of Documents stage but if, for convenience, you do load expert reports before the Disclosure of Documents stage, load them into a new section named EXPERT REPORTS TO BE EXCHANGED LATER  and set that section to a status of Excluded to ensure that they are not disclosed prematurely. 

10. Check that all the names and dates of the documents as loaded to your document management system are correct and are sorted into date order within sections.

11. Using your document management system, send copies of the documents to be disclosed to the other side together with a list of the documents. How to do this if you are using Bundledocs is explained here. If you already provided a numbered document list at a previous stage - e.g. a numbered list of key documents accompanying the Statement of Case - set the First Document Display Order Number option in Bundledocs to be one more than the last document number used on the previous list.  

Frequently Asked Questions

Why do tribunals order disclosure of documents in advance?

For the final hearing in a civil case an eBundle will be produced containing all the documents which the parties wish the tribunal to have available to consider during the hearing. In order to ensure fairness to both parties the tribunal will normally order the parties, at an early stage of the litigation, to disclose - i.e. send each other copies of - those documents they have which they will or might be using at the final hearing. One reason why the tribunal orders documents to be disclosed in advance is so that each party can properly prepare for the final hearing - for example which witnesses a party needs to use and what matters a witness needs to address in their witness statement may depend to some extent of what documents will be, or might be, used at the final hearing. 

Another reason for disclosure of documents in advance is that the parties can ask their barristers whether, in the light of all the documents 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.

As well as ordering disclosure of documents which you will (or may) be relying on at the final hearing, the tribunal will typically (by rules or by specific direction) order you to disclose other relevant  documents - so that the other side can rely on any of those additional documents 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 other relevant documents also. 

What should I do if further documents come to light after I have sent out the Disclosure List?

Invariably there will be an ongoing legal duty to promptly provide copies of any  documents in your possession or control which come to light, or any new documents which come into your possession or control before the end of the case, if they are documents which tend to support the other side's case (providing they are not privileged or course). If a document comes to light which supports your own case which you wish to rely on at the final hearing  then as well as providing a copy of it you will normally need to request the tribunal's permission for it to be included in the Bundle for the final hearing. If a (non-privileged) document comes to light which supports your own case but which you do not intend to rely on (e.g. because you judge that although relevant it is not sufficiently relevant, given all the other evidence you will already be relying on, to be needed) then whether you still have to disclose it depends on the rules of the particular tribunal.

To use Bundledocs to disclose further documents, you create a temporary section in Bundledocs and load the further documents into it so that you can then use that to make a supplementary disclosure (after temporarily setting all other sections to Excluded) using the normal procedure but setting Index Name to an appropriate title, for example, Respondent's Supplementary Disclosure List - 5 March 2022 if you are the Respondent, and setting the First Document Display Order Number to be one more than the last document number used on the previous disclosure list.

What if a party intends to rely on metadata?

Electronic documents - i.e. documents which a party originally had as computer files (or files on a phone or tablet) - as distinct from paper documents which were scanned in as PDFs only because of the litigation - may contain metadata  which a party wishes to rely on. A common example is JPG photos. Sometimes photos are taken using a phone/camera option which causes the date and time to appear as part of the actual image but if a photo taken in the past does not have the date/time as part of the image a party will normally want to rely, in order to show when the image was taken, on the date/time-taken information in the EXIF metadata of the JPG (and perhaps also on the filename, which is part of the the file-system metadata, if the photo was taken with a phone or camera which creates JPGs with files named in a format which reflects the date/time taken). Different tribunals have different specific rules but the general approach is that a party which intends to rely on a specific item of metadata is expected to make that clear in good time and provide an image-and-metadata "print" at the Disclosure of Documents stage or not too long afterwards (if at the Disclosure of Documents stage the image-and-metadata print is loaded to Bundledocs and included in the ordinary Disclosure of Documents; if afterwards use the procedure above under What should I do if further documents come to light after I have sent out the Disclosure List?) so that the other side is not unfairly taken by surprise at the last minute. It is desirable that the "image and metadata print" should be taken using a well-known facility so that it is obvious at a glance how it was produced. In due course it can then be exhibited to a witness statement. 

You might want to rely on the metadata of documents disclosed by the other side. In this case you should use the procedure above under What should I do if further documents come to light after I have sent out the Disclosure List? and give the image-and-metadata print a Document Description such as Image and Metadata Print of JPG [R35] to make the position clear. 

Do I need to do anything special with videos files?        

A "document" is anything which contains information and so includes any videos which should, if they are relevant, be included in the set of documents disclosed.

Looking ahead to the final hearing it is normally possible for arrangements to be made for specific video files to be played at the hearing but this can be time consuming and so tribunals generally prefer it if the point which a party is seeking to make from a video file can be made mainly - or preferably solely - by reference to static documents which can actually be included in the eBundle itself. 

If the current state of land or of some object (such as a piece of machinery) is relevant then it is better if a series of photos can be taken rather than a video. If evidence of the past state of land or some object is relevant then the parties are limited to what photos and/or videos were taken at the relevant time in the past. If there are historical photos which demonstrate all necessary details at the relevant date in the past then a party will not need to rely on videos taken at the same time as well. (A video file will still need to be disclosed if relevant if the tribunal has ordered all relevant document to be disclosed, but it may be that neither party will need to use it at the hearing.)  

If, however, an important detail is shown on a historical video, and no suitable photo of the same detail taken at the time is available, then one or more snapshots can be taken of the relevant frames in the video, and those static snapshots can be included in the eventual eBundle. Different tribunals have different specific rules but the general approach is that a party which intends to rely on particular frames of a video is expected to make that clear in advance by doing more than simply sending a native copy of the video file to the other side as part of Disclosure of Documents. Generally they are expected to take the relevant snapshots from the video and to send those to the other side at the Disclosure of Documents stage or not too long afterwards (if afterwards use the procedure above under What should I do if further documents come to light after I have sent out the Disclosure List?) thus alerting the other party to the particular frames of the video which are considered significant and hopefully avoiding the need for the video itself to actually be played at the final hearing. If the date that the video was taken is important and/or likely to be disputed a metadata "print" made with a well-known facility should also be sent.

When making snapshots of key frames in a video, do so in such a way that the the snapshot image contains the number of minutes and seconds into the video that the snapshot is taken, and that the snapshot image includes the filename of the video. A screenshot will typically be created as a JPG or PNG file. Loading a JPG or PNG file direct to Bundledocs may result in the image being presented on the left hand side of the page (rather than centrally) which means that part might be obscured in the binding if a hardcopy is produced so it is better to create a PDF copy (using e.g. PDF X-Change Editor) with the image set centrally on the page and use that.

Document Date                            Document Description

Note: if the video is of a meeting and it is what is actually said which is relevant then normally a transcript - rather than snapshots - will be needed.

Do I need to do anything special with audio files?        

A "document" is anything which contains information and so includes any audio files which should, if they are relevant, be included in the set of documents disclosed.

Looking ahead to the final hearing it is normally possible for arrangements to be made for specific audio files to be played at the hearing but this can be time consuming and so tribunals generally prefer it if the point which a party is seeking to make from an audio file can be made mainly - or preferably solely - by reference to static documents which can actually be included in the eBundle itself. 

If a business meeting was recorded and minutes were then produced at the time, and both parties are able to agree that the minutes are a fair reflection  of what was said and decided at the meeting, then those minutes can be included in the eBundle and a party may then not need to rely on the audio recording.  (The audio file will still need to be disclosed if relevant if the tribunal has ordered all relevant document to be disclosed, but it may be that neither party will need to use it at the final hearing.)  

If no minutes were produced at the time (or if they were but a party maintains that they are inaccurate and/or do not record certain important matters) then a transcript of the audio recording can be made to be included in the eBundle.  It is desirable that the wording of any transcript to be made is agreed between the parties. If the transcript is not agreed before the final hearing and it becomes necessary to play the audio file because there is a dispute over the transcript then that reduces the value of using a transcript. Because of the need to try to agree the transcript, and because whether or not a transcript is needed may be depend on what documents the other side discloses, a party intending to rely on an audio recording is (depending on the rules and directions of the specific tribunal) not necessarily expected to have a transcript ready at the Disclosure of Documents stage  when they disclose the audio file itself but they should, if they then decide that they wish to rely on an audio recording, start the process of producing and trying to agree the transcript immediately after the Disclosure of Documents stage.          

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

You will be making copies of documents as part of the litigation process of course - for example by scanning in relevant paper documents as PDFs - but it might be that even before litigation was intimated you had more than one copy of a particular document. If so, should you disclose all the copies you have or just one of them? If the copies are identical - for example one is a JPG on your phone and the other is a copy of that JPG on your computer - then you just load one to be disclosed. If you have two paper copies which are identical except for minor blemishes caused by e.g. dust on the photocopier glass then again you would only scan one copy and load that. If the difference is more significant - for example if one copy is the "wet ink" signed original and the other is a copy which has a  handwritten endorsement - then you would treat them as two separate documents (and load and disclose both) if the difference between them is significant for the disputed issues in the case. In the example just given if the handwritten endorsement simply certifies that the document is a true copy then the endorsement is unlikely to be significant for the issues in the case but it could be if, for example, there happened to be a dispute over whether the person who signed the endorsement had ever seen the document because the signed endorsement is evidence that they did see it, at least on the occasion when they signed the endorsement. Where the difference between the copies of the document is significant for the disputed issues in the case, both copies would be loaded with Document Descriptions like this:-

Letter Smith to Jones (without endorsement)

Letter Smith to Jones (with endorsement)  

so that both are disclosed.

Note that  you need to disclose video files and audio files even if you also send snapshots and/or transcripts. The other side is entitled to double check the transcripts and/or snapshots. Similarly if (as explained above) you produce and disclose "PDF prints" showing key items of metadata for a JPG, you still need to disclose the JPG itself as well.

Why do I have to work out what documents need to be disclosed, and therefore be loaded - 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 eBundle (generally a document is only included if either side wants it to be), nevertheless disclosing large numbers of documents at the Disclosure of Documents stage will in itself increase costs because the other side is obliged to read and consider them.  The tribunal will normally expect 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.

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 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, for your own purposes, anyway, it is more cost-effective if it is you, rather than the other party, which, at the same time, reviews for relevance for the purposes of disclosure.

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 the final hearing (to the extent that they are still appropriate given e.g. how the witness evidence comes out at the hearing). Some (not all) legal arguments and factual assertions are of a type which you have to notify the tribunal (and the other side) about in your initial Statement of Case (if you don't you might not be allowed to use those particulars arguments later - so you should have made sure that your statement of case was drafted by a barrister) but a written Opinion which happens to contain those arguments or other arguments is not a document you should show 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?

A barrister can help. A barrister can:

• Explain to you and advise you - in general terms - about what the orders made by the tribunal and/or the tribunal rules allow and/or require you to do with regard to disclosure of documents

• Advise you whether a particular document is subject to legal privilege (if a document is legally privileged you don't have to provide a copy of it to the other side even if it is relevant)

• Advise you whether it would be to your advantage to waive privilege in a particular privileged document (you can choose to provide a copy of a particular privileged document to the other side so that you can then then use it)

• Advise you if a particular document is clearly relevant (so that you have to provide a copy of it and/or should rely on it)

But a barrister cannot definitively advise you that a particular (non-privileged) document is irrelevant (and so does not need to be disclosed). One reason for this is that a document which on its face does not appear to be relevant to the disputed issues as they are currently understood may, nevertheless, have a bearing on the case when considered together with other documents. 

Take the example of a dispute about a right of way. Whether a certain route has been used, as of right, for at least 20 continuous years in the past may be relevant to whether a right of way exists, and whether a made up track existed over that route at particular times in the past may therefore be relevant. Correspondence indicating that a water tower (some distance east of the route and not accessed by it) was built in 1925 would be, on the face of it, irrelevant. Likewise correspondence indicating that a radio mast was erected in 1950, some distance further east, would also seem irrelevant. But suppose some old photographs come to light, taken looking east and showing the track. Any photo in which neither the water tower nor the radio mast can be seen must have been taken before 1925. Any photo showing the water tower but not the radio mast must have been taken between 1925 and 1950, and any photo showing both must have been taken after 1950. So it turns out that the correspondence, previously thought irrelevant, happens to be relevant, in combination with the old photos, because it helps to date the photos and thus shed light on the question of for what period of time the track was made up and, presumably, used. 

So although a barrister can help by providing some advice during the disclosure of documents process, a barrister cannot take overall responsibility for the disclosure of documents process.  Only you, who are aware of all the documents, and know what searches you have carried out, are in a position to determine definitively that a document is irrelevant (and so need not be disclosed) and in a position to sign any disclosure declaration required.

The other side has disclosed documents to me - what should I do with them?

Load the documents disclosed by the other side into your document management system making sure that for each document loaded the correct identifier is specified (e.g. A if the other side is the Applicant or R if the other side is the Respondent). If you are using Bundledocs, See here for more details.

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 will not be applicable to every case: it is intended to be used only in conjunction with more 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 April 2024. Disclaimer