Disclosure of Documents


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.

You have to disclose:

1. the documents you will rely on, and

2. the court or tribunal may order you to disclose relevant documents in your control which you are aware of and which are of a specified description.

Point (2) above only applies to documents you are aware of but the court/tribunal may order you to carry out specific types of searches as a result of which you may become aware of additional documents meeting the description which you then have to disclose.

It might be thought that the documents in 1 and 2 would be the same and it is true that normally there is considerable overlap but bear in mind that:-
  • If you claim that a document is privileged you do not have to disclose it under (2) but you might choose to disclose it under (1) so that you can use it. For example photographs taken after litigation has started are normally privileged but you might choose to waive privilege and rely on some of them.
  • Under (2) the court/tribunal will only order you to disclose documents which you are aware of (after carrying out any searches ordered) which are in your control. Documents in your "control" includes documents which someone else (e.g. your accountant, bank, mortgage company, or your employee) is holding 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 voluntarily make further searches (beyond those you are required to do) looking for documents you might want to rely on (1) and that might result in copies of further documents coming into your possession which then come within (2) - so that you have to disclose them even if you yourself do not, in the event, intend to rely on them.
  • 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. 

Note that a "document" 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.

At the Exchange of Witness Statements stage each party will exchange with the other party witness statements from that party and their witnesses who are to give evidence at the trial. If, as is usual, the deadline for the Exchange of Witness Statements stage is after the deadline for the Disclosure of Documents stage, you should make sure that you do not accidentally disclose prematurely, at the Disclosure of Documents stage, witness statements which you are due to exchange later on. However you should make sure that you do disclose, at the Disclosure of Documents stage, any documents which are referred to in those witness statements.

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. In the months before the Disclosure of Documents stage some documents will already have been identified - e.g. in a barrister's Opinion - and you can load these relevant documents into your Documentary Evidence section in advance. 

2. By the time you are approaching the deadline for Disclosure of Documents you will have carried out some searches, which have been ordered by the court/tribunal,  and you must load into your Documentary Evidence section every document (which is not privilegedwhich you find which meets the court/tribunal-specified criteria for disclosure.

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

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

5. Consider whether there are further documents (i.e. documents other than those mentioned in 1 to 4 above) which you could load into your Documentary Evidence section which would help your case. Depending how extensive the searches ordered by the court/tribunal were, most documents not already covered by 1 may be covered by 2 above but perhaps not all. In particular consider:
  • Have you taken any photographs since litigation was first contemplated? - if so these will normally be privileged (and so not covered by 2 above) but you can choose to load them, or some of them, into your Documentary Evidence section, if they support your case.
  • Normally the searches ordered by the court or tribunal (2 above) are only for documents which bear on some issue in dispute but you may be aware also of narrative documents which just "set the scene" such as an organisation chart. You might want to load some (but usually not a huge number) of narrative documents into your Documentary Evidence section 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 your Documentary Evidence section are correct.

7. Send the documents in your Documentary Evidence section to the other side in PDF form and formally serve on them a list of documents/disclosure statement/certificate as explained here.
    

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



Frequently Asked Questions

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

Even though it is true that not all previously disclosed documents have to be included in the Trial Bundle (generally a document is only included if either side wants it to be), still 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 particular non-privileged document is relevant you can load it up and disclose it anyway but you should not disclose large numbers of documents without checking that they are relevant because that would unnecessarily increase the other side's legal costs as they would have to review all those documents. 

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

Should I load video and audio files to the my Documentary Evidence section?

Yes if they are relevant. This will cause a placeholder document to generated so that the video/audio file is included in the generated disclosure list.


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

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


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

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

Letter Smith to Jones (without annotation)

Letter Smith to Jones (with annotation)  


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

Make a careful record of what you have received.

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

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

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

Having checked that what has been disclosed is complete, and that it is clear which document is which, and having made sure you have complied with your disclosure obligations (which process will have included loading all the documents you are disclosing into your Documentary Evidence section In Bundledocs and setting the Disclosing Party column appropriately (e.g. to C if you are the Claimant or to D if you are the Defendant etc.) the next step, after combining the sections so that there is a single Documentary Evidence section, is to load the documents which the other side has now provided into the Documentary Evidence section making sure that for each PDF loaded the Disclosing Party column is set appropriately (e.g. to C if the other side is the Claimant or to D if the other side is the Defendant etc.).    

As you are loading each document provided by the other side, check whether the document you are about to load is the same as a document you already have (and which, therefore, is already in the Documentary Evidence section). It might be the same as a document already provided by the other side earlier (as some key documents are usually disclosed before the main Disclosure of Documents stage) and if it really is identical of course it does not need to be loaded. If it looks the same as one of your documents double check that there is no significant difference such as an annotation but if the document really is the same (except, perhaps, for something insignificant such as a faint line caused by the photocopying/scanning) then instead of loading the document, amend the Disclosing Party column for the document already loaded as in the following example:

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

 11 May 2015     C         Letter Smith to Jones                  

And and identical document has been disclosed by the other side - the Defendant. You would change the Disclosing Party column on the document already loaded like this 

 11 May 2015     C=D    Letter Smith to Jones 

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

         11 May 2015     C=D    Letter Smith to Jones 

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

Sometimes it happens that two copies appear identical but a significant difference is noticed later so it is important whether the Disclosing Party column is C=D or D=C.

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

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

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

 

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

The court's/tribunal's disclosure orders (and/or the court's/tribunal's rules) create ongoing legal duties which last until the end of the case so that if, for example, you are ordered to disclose all title deeds in your control for a particular property, that means you have to not only disclose those deeds for that property which are in your control when the order was made but you also have to immediately disclose any further deeds for that property which come into your control at any time in the future before the end of the case. So although the order will not oblige you to ask third parties for copies of their documents, if you do decide to ask third parties if they have copies of deeds for the property (to see if they may help your case) when those copy deeds then come into your control (when you receive them by post or email for example) you are then obliged to disclose them (even if they happen to undermine your case rather than support it) because of the ongoing legal duty to disclose such documents which are in your control if they are within the scope of the court's/tribunal's order (unless they are privileged).

Another circumstance in which documents come into your control might be if, when witness statements are being taken, a witness provides a relevant document. For example if you are ordered to disclose all title deeds in your control for a particular property, it might be that when a particular witness - say a previous owner of your property - is interviewed by an investigator you engage, they produce another historical deed for the property which you have not seen before and hand it over or allow a copy to be taken. In this case you have to disclose the document straightaway even before witness statements are exchanged. 

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

To disclose further documents to the other side, create a temporary section Claimant's Documentary Evidence for supplementary disclosure in Bundledocs and load the further documents into it so that you can then use make a supplementary disclosure as explained here.

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

The Documentary Evidence section 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 Documentary Evidence section. For example pleadings typically refer to key documents and any document actually referred to in your pleadings should be loaded to the Documentary Evidence section. And typically you will be aware of other key relevant documents as part of the process of seeking legal advice and/or applying for early interim relief, and these can be loaded also so that there is less to do later on at the Disclosure of Documents stage itself. 

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

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

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

Do I have to disclose correspondence between myself and my barrister?

No. A written Opinion or other written advice from a barrister is covered by legal advice privilege. This means that you can keep its contents confidential and do not have to provide a copy of it to anyone. Not only do you not have to, but you should make sure you do not, provide a copy to the other side by mistake. An Opinion is a frank assessment of the strong and weak points of your case and showing it to the other side would give them an unfair tactical advantage. You will not be relying on the written Opinion or other written advice from a barrister as evidence. You may be thinking that it is a bit odd to say that you will not be relying on a barrister's Opinion, but the point is this. The documents you are identifying at the present time are evidential documents - documents which themselves help to prove one or the other party's case. A written Opinion is not itself an evidential document. It may contain legal arguments but those legal arguments stand on their own merits. Those arguments can be made by your barrister at trial (to the extent that they are still appropriate given e.g. how the witness evidence comes out at trial). Some (not all) legal arguments and factual assertions are of a type which you have to notify the court/tribunal (and the other side) about at the Pleadings stage (if you don't you might not be allowed to use those particulars arguments at trial - so you should have made sure that your pleadings were drafted by a barrister) but a written Opinion which happens to contain those arguments or other arguments is not a document you should disclose to the other party. 


It all sounds a bit complicated. Can I ask a barrister to carry out the disclosure of documents process for me?

No. Unfortunately not. This is something you have to do and take responsibility for. A barrister can help by advising that a particular document is relevant, is not privileged, and therefore should be disclosed. A barrister can advise you that a document is privileged and that you should claim privilege so that you do not have to produce it. And a barrister can advise you that although a document is privileged it would be in your interests to "waive" (give up) privilege and disclose it so that you can use it. But a barrister cannot tell you that a document is definitely irrelevant, so you yourself have to decide that. 

When a barrister writes an Opinion after considering a number of documents, it will be apparent from that Opinion that (a) some documents support your case. The Opinion may also consider (b) some other documents which apparently do not support your case, and and give a view, taking all things into account, what the chances of success are. If the barrister does not consider a document relevant at all (c) then it will probably not be mentioned in the Opinion at all. However if a document (d) initially seems relevant but upon due consideration the barrister concludes that, despite initial appearances, it is not relevant after all, the Opinion may mention that with a brief explanation. It is also possible that the barrister may consider a document (e) relevant but, because there are other more significant relevant documents, not mention it - an Opinion gives an overall view concentrating on the most significant matters and is not intended to be an exhaustive commentary on every document.  

From such an Opinion you could see that (a) and (b) would be documents to be disclosed, but it does not tell you whether (c) and (e) are relevant and need to be disclosed or not - this is something you have to decide. The Opinion also does not tell you definitively that (d) is irrelevant. This is because, although the barrister concluded that it is not relevant, that conclusion is only based on the material which they were considering when writing the Opinion and it is possible that in the light of other documents which you may find (or which may be disclosed by the other side) the document might be relevant after all. The following example illustrates why this might be so.

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 tell you if a document is relevant and should be disclosed, or that a document is privileged, a barrister cannot tell you definitely that a (non-privileged) document is definitely irrelevant and so does not need to be disclosed. This is because - as explained above - a document which seems neither to support nor undermine any party's case may in fact do so when seen in the context of other documents. So only you, who are aware of all the documents, and know what searches you have carried out, are in a position to determine that a document need not be disclosed, and in a position to sign the disclosure statement confirming that you have complied (and will continue to comply) with your disclosure duty.

You could engage a solicitor to carry out the disclosure of documents process for you but if you are able to do it yourself there advantages in doing so. 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 it becomes clear what they need to do when carrying out the disclosure of documents process. It takes time but they can do it. If, however, you do not feel that disclosure of documents is something you are able to do, you will need to engage a solicitor.

The reason why engaging a solicitor to carry out the disclosure process for you is likely to be expensive is partly that the disclosure process itself can take some time, partly because the solicitor will need to interview you to find out the locations which might need to be searched (you can provide the solicitor with a copy of your computer folders but the solicitor needs some guidance as to where to look and will need to consider with you what other locations may need to be searched), and partly because solicitors are generally reluctant to just carry out disclosure without having ongoing control and conduct of your case - which will entail further costs. In fact if you know you are going to ask solicitors to carry out disclosure of documents for you it is probably best to instruct solicitors from the outset and not instruct a barrister direct. If you are gong to instruct solicitors to deal with disclosure you should certainly instruct them in good time, preferably at least two months before the deadline for disclosure. 


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

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

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

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

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

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

"Mr Smith must disclose all invoices sent to Mr Jones between between 1 January 2004 and 31 December 2010"

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 relevant to the the parties agreeing a completion date for 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 May 2020. Disclaimer