In most civil cases the court or tribunal, as one of the steps leading up to the trial, will order each party to send to the other a list of those documents which that party has which are probative of the disputed issues in the case. The court/tribunal may also order parties, at the same time as sending to each other lists of documents, to send each other copies of the documents themselves. Alternatively the court/tribunal may simply order parties to supply copies of documents from the list if and when the other party requests copies.
This process is generally known as "disclosure of documents" though, depending on the court or tribunal, sometimes other names are given to the process. Strictly speaking, in a court subject to the Civil Procedure Rules - i.e. the County Court and High Court - it is the process of exchanging lists of documents which is "disclosure" and when copies of documents are sent this is known as "inspection", but the phase "disclosure of documents" tends to be used as a general term for the whole process.
Unless otherwise ordered, only documents which are probative of disputed issues have to be included on the disclosure lists. The pleadings tell you what issues are in dispute. Probative documents are documents which tend to make it more or less likely that some disputed fact is true.
For example, take a dispute between a householder and a builder. There might be a number of issues in dispute such as the quality of the work, what price was agreed, whether any specific date for completion of the work was agreed, etc.
Suppose that in the court case, the householder claims that it was agreed, right at the outset, along with all the other terms, that the work would be completed by 1st November. However the builder denies that any specific completion date was agreed.
To decide what documents are probative of this particular issue, imagine that you are the impartial judge who is going to have to decide who is right – whether a completion date of 1st November was agreed at the outset or not. In a civil case the judge decides on the “balance of probabilities” – i.e. is it more likely that the date of 1st November was agreed at the outset (as the householder claims) or is it more likely that no specific date was agreed (as the builder claims)? – so it is not just “smoking gun” evidence which is important but any document which tends to suggest that 1st November was agreed or any document which tends to suggest that no specific date was agreed.
An email from the householder saying that the work needs to be done by 1st November and a positive response from the builder saying that he will agree to do that, is clearly a probative document but less conclusive documents can also be probative. For example a fairly formal letter or email setting out the price and exactly what work is to be done but not mentioning any agreed completion date would also be probative as it tends to suggest that no specific date was agreed because, it can be argued, a completion date, if it had been agreed, would have been an important detail which you would expect to have been included in a fairly formal letter or email which mentions all the other key details.
Of course a formal letter or email giving all the other key details of the agreement but not mentioning a specific completion date is not entirely inconsistent with a completion date of 1st November having been agreed – when confirming what has been agreed people do sometimes miss off key details by mistake – but it tends to suggest that no specific date was agreed and therefore counts as a probative document. Some documents strongly suggest where the truth lies; other documents provide weaker evidence, but, when producing a disclosure list at the Disclosure of Documents stage, when you find a document you do not need to work out exactly how important a document is: as long as it at least tends to suggest where the truth lies on a disputed issue, it is probative.
When the builder misses the date of 1st November (or when it becomes clear that it is going to be missed) emails between the householder and the builder at that stage may also be probative of whether the date of 1st November was agreed at the outset. For example an email from the householder expressing concern about the delay but not mentioning any agreement as to any specific completion date is probative because if there had been an agreement as to completion date you would, on the face of it, have expected that to be mentioned. There may be a good reason why it was not mentioned but when deciding whether a document is probative of this issue you would look at each document and ask yourself the questions: At face value, and leaving aside any explanation which might be given, does this document tend to suggest that a date of 1st November was agreed? At face value, and leaving aside any explanation which might be given, does this document tend to suggest that no specific completion date was agreed? If the answer to either question is Yes, then it is a probative document.
Once you have got clear in your mind how to recognise probative documents, you are ready to start searching.
You have to search for all probative documents which are in your possession or in your control. Documents in your possession would include paper documents in your filing cabinet or desk drawer or on your computer, tablet or phone. If you are a business or other organisation documents in your possession would include all documents in your filing systems and offsite storage and notes held by your employees. Documents in your control covers documents you do not currently have in your possession but which you have, for example, lodged with your bank for safe keeping, or sent to you accountant so that your accountant can do your accounts. Even if the bank is holding your documents as security and so will not return the originals to you, you are still entitled to ask the bank for copies, so they are still counted as being in your control. You have to include on your disclosure list all probative documents in your possession or control whether they help your case or help your opponent's case.
If you are a private individual and everything relevant to the matter in dispute has occurred in the last year or so (for example if the dispute is about the quality of machinery you have recently purchased) then it is likely that a search sufficiently thorough to ensure all probative documents in your possession or control are located will not be too difficult because there are only so many places they can be. If you had stored documents about the matter in a box in your attic, or with your accountant, you are likely to have remembered that. And providing your home is reasonably tidy there may only be certain places were documents are kept such as in a filing cabinet or desk drawer. If you check those places, plus, for example, checking behind the sofa to see if anything has fallen down there, it may be that you can be confident that you have found everything there is.
But if, for example, the matter concerns how land has been used in the past - for example whether land was used as garden, or whether a fence was in a certain position, 30 or 40 years ago - ensuring that you have located all probative documents may not be quite so easy. Any old photograph you have taken might potentially be probative because even if the main subject matter was a party, or group of friends, or family, the land in question might appear in the background. Yet where each photograph is located is likely to depend, to a degree, on what the main subject matter is, so even if you store things systematically in boxes in your attic, it may be difficult to be sure which boxes need to be searched, and searching through all boxes may be difficult if there are hundreds of them. In this situation you can rely on the fact that in court (rather than tribunal) cases you only have to carry out a reasonable and proportionate search - though if you rely on your right to only carry out a reasonable search your disclosure statement will have to be more complex.
Similarly if you are a large organisation and particularly if some of the issues in dispute in the litigation cut across the categories used in your filing systems, whilst there may be some obvious places to look for documents, it may be that the only way to be sure that you have found all probative documents in your possession or control would be to search through hundreds of thousands of documents. In this situation also you can rely on the fact that in court (but not tribunal) cases you only have to carry out a reasonable and proportionate search - though if you rely on your right to only carry out a reasonable search your disclosure statement will have to be more complex.
You have to list any probative document which happens to come into your possession or control (whether it helps your case or your opponent's case) but you are not obliged to search for probative documents in other places - you do not have to search official registers which are open to the public, or ask persons you have no control over what documents they may have, for example. However you cannot rely, at trial, on any document which is not on your (or another party's) disclosure list so now is the time to try to obtain copies of documents from public registers such as the Land Registry or Companies House, or from other persons, if you wish to, so that they are listed on your disclosure list and you have the option of using them at trial.
It is important to make sure that you disclose all the documents which the court/tribunal's order requires you to disclose. It is equally important to keep records, in one ring binder, showing what documents you have disclosed and to keep in a second ring binder records of what the other side has disclosed to you. By records I mean not just the disclosure lists themselves but any relevant correspondence. For example the other side might have an item named "invoices, various dates" on their Disclosure List. This would be bad practice because each document is supposed to be listed individually with its date. However rather than issue a formal Application to the court/tribunal for an order that the other side produce a more detailed list (which would increase both side's costs and cause delay) it is in most cases better to deal with the matter by correspondence. So you would ask the other side for copies and, when you receive them, write back listing the invoices, and keep a copy of all this correspondence in the relevant ring binder.
It is important that you organise the records in the ring binders so that if any query arises as to whether you disclosed a particular document to the other side, you can check and prove that you did, and likewise if any query arises as to whether the other side have disclosed a particular document, you need to be able to quickly check and be able to prove whether they did or not. Here are some examples of when it might be necessary to check.
Before computers became widely available it was common for disclosure lists to be typed up, but a much better way of producing a disclosure list is to first scan in each document as a PDF giving it a PDF file name containing the date and a concise description of the document. A disclosure list can then be produced automatically by simply listing the file names. Another advantage of doing it this way is that if you have an complete organised set of PDF copies of your documents, and if you add to it PDF copies of documents disclosed by the other side, you then have an easy to navigate complete set of documents from which you can, when the time comes to create the trial bundle, select documents to be included in it.
Some courts/tribunals only require you to provide copies of documents and do not require you to provide a list. And some courts which ordinarily require lists allow the parties to dispense with lists by agreement. However it is best always to provide a list as it helps to avoid disputes later on about exactly what documents each party provided.
If you have PDF copies of all probative documents, suitably named with the date (e.g. 2014-10-22 Letter Smith to Jones) you can send them (together with any audio/video files) to the other side using Sendfiles and copy/paste the list of files in the Sendfiles confirmation email into a Word document which you can then use as your Disclosure List after you have added a suitable heading at the top of the document and saved it in PDF form. Note - in court (rather than tribunal) proceedings the Disclosure List should be attached to a Disclosure Statement
Or if you have loaded documents into Caselines, you can use Caselines to generate a list of the documents as a Word document, which you can then use as your Disclosure List after you have added a suitable heading at the top of the document, ensured that any audio/video files are also listed, and saved it in PDF form. You can then download the documents themselves from Caselines as PDFs and send them, together with a PDF copy of your Disclosure List and signed Disclosure Statement if required (a Disclosure Statement is required in most court, as distinct from tribunal, cases) to the other side.
containing the words:
This ensures that when you generate a Disclosure List from Caselines it includes audio and video files. When downloading documents from Caselines as PDFs to send to the other side, don't download the placeholder files but do make sure you send the actual video/audio files.
If you are aware of documents which you have had in the past but don't have copies of now - for example if you have a letter addressed to you which commences "thank you for your letter of 5th May" but you don't have a copy of your letter dated 5th May which it is replying to because you did not keep a copy when you sent out your letter - create a PDF containing the text "A copy of this document is not available" and give the PDF a name which includes, in brackets at the end, the letters NA (which stand for "not available") and brief one or two word explanation of why a copy of the document is not available such as (NA - did not keep copy) or (NA - lost) or (NA - changed phone). This ensures that when you generate your Disclosure List these are included.
If yours is a court case subject to the Civil Procedure Rules then Practice Direction 31A states that it will "normally be necessary to... number [documents] consecutively..." One reason for this is that under the Civil Procedure Rules an order for "standard disclosure" only requires the parties to initially provide lists of documents. Actual copies of documents only have to be provided when requested and the fact that each document is numbered means that a party requesting copies can just quote the number of each document it requires. In some tribunals the usual disclosure order is that the parties must provide a list and automatically provide copies of all documents on the list without waiting to be asked. In this case the disclosure order may not require the documents to be numbered on the disclosure list but, even if not required, many people think it is still useful to number the documents for ease of reference.
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. The same applies to any advice from any lawyer (solicitor or barrister) about this case or any other matter, and to any document created in order to obtain legal advice – such as and email to your lawyer or a summary of events specifically written up so that a lawyer can advise.
Anything created as part of the process of litigation (including when litigation was contemplated but before it formally started) – a summary of events, or an expert report which you have commissioned (but not an expert report jointly commissioned by you and the other party), photographs taken, proofs of evidence of witnesses (e.g. a handwritten or typed account of what a witness remembers before it is put into formal witness statement form), and witness statements - is covered by litigation privilege. Some of these documents, in their final form, will eventually be sent to the other party in accordance with the court's/tribunal's timetable - e.g. witness statements will be exchanged before trial as ordered by the court/tribunal - but, until then, they are privileged and their contents can be kept confidential.
Without prejudice correspondence in which settlement offers and made and responded to is privileged and should not be included on the disclosure list. There are some other cases where it may be possible to claim privilege.
If there is a dispute between the parties about whether documents are privileged or not, ultimately the court/tribunal can be asked for a ruling. The court/tribunal may require parties, when disclosing documents, to make a Disclosure Statement which, among other things, states what documents exist for which privilege is claimed (or rather what groups of documents exist, since listing them individually might not be appropriate if they truly are privileged) and what kind of privilege is claimed so that the other party can decide whether to challenge the claim of privilege.
Although you are entitled to keep privileged documents confidential, you can choose to disclose selected privileged documents so that they are then no longer confidential. This is known as waiving privilege. Most privileged documents you will want to keep confidential because, for example, letting other parties see a written advice from a barrister would reveal to them which parts of your case your barrister thinks are the weaker points, and you do not want other parties to see that because it may give them a tactical advantage. However some privileged documents - e.g. photographs taken after litigation was first contemplated - you will want to use at trial so you would choose to disclose them. By doing this you are “waiving privilege” in those documents so that they are no longer privileged, allowing the other parties to have copies of them and allowing you to then use them later on at the trial. Normally the disclosure order made by the court/tribunal requires all documents you will be relying on at the trial to be disclosed at the Disclosure of Documents stage, so you need to decide at this stage which photographs which happen to be privileged you might need to use at trial (relevant photos which are not privileged have to be disclosed in any event, of course: you have no choice about those photos).
Witness statements for the current proceedings (i.e. the proceedings in which the disclosure order has been made) which have not yet been exchanged/served are privileged and so are not disclosed at the Disclosure of Documents stage.
Usually any witness statement served in the past - e.g. in other court or tribunal proceedings - will not be probative of disputed issues in the current proceedings but if you have any witness statements served or filed in the past - or any statutory declaration or Land Registry Statement of Truth (in Land Registry applications a Statement of Truth is the name given to a document which is similar to a statutory declaration - "statement of truth" has a different meaning in court proceedings) - which happens to be probative of issues in the current proceedings then that would be included on the disclosure list.
All photographs (and videos) which you took for the purposes of litigation or to seek legal advice are privileged. You only have to disclose privileged photographs if you want to rely on them at the trial. So if there are hundreds of privileged photographs many of the same subject you probably want to be selective and only disclose the the ones you need to support your case - i.e. if 10 photographs were taken of the same subject from the same angle on the same occasion you probably only need to include one of the ten - the clearest one.
Of course historical photographs which are not privileged (not privileged because when they were taken it was not in contemplation of litigation and they were not being taken for the purpose of of obtaining legal advice) all have to be disclosed if they are probative.
Such probative correspondence should be added to your disclosure list.
Apart from photographs and videos which may be taken after commencement of litigation, and some litigation correspondence as explained above, in the majority of cases, all or most of the probative documents will be dated before commencement of litigation. This is because the party commencing litigation will be complaining about the other party's past actions (or inactions) and documents probative of disputed issues about those past actions will normally be documents dating from around the time of those past actions. So if more than 5% of the entries on the disclosure list you are producing are dated after commencement of litigation, it is worth double-checking that you correctly understand what a probative document is and what a privileged document is. Nevertheless some documents dated after commencement of litigation may be probative, e.g. -
The purpose of the pleadings, produced by each party at the start of litigation, is to set out the facts which each party will try to prove with evidence (such as witness statements) but traditionally the pleading documents themselves were not considered to be evidence. However under the Civil Procedure Rules - which came into force in 1999 and apply to most civil court (as distinct from tribunal) proceedings - each pleading document has to be signed and contain a statement that the person signing believes the facts stated in the document to be true, and the pleading documents are therefore evidence. Consequently in civil court proceedings, strictly speaking pleadings should be included - This is usually done on the Disclosure Statement itself rather than on the attached list of documents.
My business accounts are probative so I will disclose them. What do I do about the individual documents (purchase orders, invoices, etc.) which the accounts were compiled from?
If the case is about loss of business to one party allegedly caused by a legal wrong by the other party, there will usually be some direct evidence connecting the wrong with the loss. For example if a hotel has lost business because some of its rooms were unavailable for periods due to poor workmanship/delay by a builder, there may be direct evidence of telephone calls from customers trying to book rooms and being turned away because of lack of rooms. Such evidence may not cover the entirety of the loss because it does not cover customers who viewed room availability online and did not book because of lack of availability (it being impossible to distinguish such customers from people casually browsing online).
The hotel's accounts provide further evidence. If the unavailability of rooms made a significant difference to revenue and, hence, profits, the annual accounts may bear this out by showing that the year in question produced strikingly lower profits than other years. But even if the accounts are not useful for this purpose (e.g. because the loss does not affect the accounts to a degree which can be clearly distinguished from variations from year to year due to other factors) the accounts will still provide some background or statistical material which may assist with approximate calculations of loss. For example they may show, or give figures from which can be calculated, the average profit per night per room or per type of room.
If the accounts are probative, then the individual financial transactions, from which the accounts were compiled, such as purchase orders, cheques/paying-in slips or other evidence of payments in and out, invoices and receipts, will also be probative because they can prove (or disprove) the accuracy of the accounts. But, in practice, it is unlikely that either side will be asking the court/tribunal to count up the individual items at trial (and unlikely that the court/tribunal would agree to do so). Instead what would typically happen would be that the other party would either choose to accept the summary documents (e.g. annual accounts) produced by a party as accurate, or else they would carry out random sampling to check their accuracy, or they might, in some cases, engage a forensic accountant to go through the transactions. In such situations usually the parties will agree, in order to save costs for both sides, that the individual financial transaction documents need not be listed individually but can be included on the disclosure list as groups by year, and instead of providing PDF copies of every transaction, it may be agreed that a supervised physical inspection of the original documents can take place at an agreed time and place.
In such situations, you would make PDF copies of the accounts or other summary documents, and disclose these in the usual way, and make placeholder PDFs containing the text “this category of documents may be inspected on request” for each category/date range of transaction documents, like this:-
So that when a disclosure list is created from the PDF file names the groups of transaction documents are included on the list.
If the other side does ask to inspect the transaction documents then if they are in paper form a time will need to be arranged for them to come and inspect them in person in your presence. It is good practice to offer to scan in and provide PDF copies of any particular documents the other side are particularly interested in - it makes it easier for them and also means that you can investigate further to try to guess why the other side might regard that particular transaction document as significant. If the transaction documents the other side wish to inspect are documents on computer/tablet/phone etc. then they can be sent using e.g. Sendfiles.
I have been making enquiries and I have obtained copies of probative documents from Companies House, from the Land Registry, and a previous owner of my property has given me a copy of a photo he took some time ago which is probative, do I have to disclose these?
Yes. Any probative document which is now (or has been) in your possession or control has to be disclosed unless privileged.
I received the other party's disclosure list and copies of the documents on it a few days ago and I am about to send out my disclosure list. But now that I have copies of the other party's disclosed documents in my possession, do I have to add them to my disclosure list before I send it out?
No. Documents disclosed by the other side after commencement of litigation (or disclosed just before commencement of litigation during pre-action correspondence) are documents disclosed by the other side and should not be included on your disclosure list if you did not have them before. Your disclosure list should contain (a) non-privileged probative documents which were (or had been) in your possession or control before commencement of litigation (or commencement of formal pre-action correspondence) plus (b) any (non-privileged) probative documents which subsequently came into your possession or control by any means other than by being sent to you by the other party as part of the litigation process.
I can't decide whether a document is probative or not - what should I do?
In some cases it is relatively easy to find all documents which are relevant to what the case is about, but harder to decide which of those documents are probative. In other words it is easy to see whether a document has something to do with the case but harder to decide whether it is actually probative - i.e. whether it either tends to support one party or another- or whether it is really neutral.
The courts and tribunals expect the parties to conduct litigation reasonably and proportionately. This means that if you have thousands of documents which have something to do with the case you should not just include them all, because that will increase the costs in the case (because of the increased time taken by the other party in looking through them) but only include those which are probative. However if there are not many documents in total anyway - say not more than 40 documents which are not more than 100 pages in total - and you have difficulty deciding, out of those documents which have something to do with the case, which are in fact probative, it may not be reasonable or proportionate to spend too much time trying to decide, and may be reasonable to just include them all on your disclosure list
But if you have reason not to want to list a specific document if you don't have to (e.g. because it is personally embarrassing or commercially sensitive for reasons not connected to the issues in the case) then it is particularly important that you seek advice from a qualified lawyer as to whether you are legally obliged to include the document on your disclosure list - i.e. advice about whether the document is probative and/or privileged. In some cases where a document does have to be listed it is permitted to redact (i.e. blacken out) irrelevant information when providing a copy. Again a qualified lawyer can advise whether this is permitted in your particular case.
Sometimes it happens that a document turns up after the disclosure list has been sent out. For example, a document which you have might have been misfiled and be discovered by you when you are working on some different matter. Or a document might come into your hands for the first time after you have sent out the disclosure list. If the document is probative of disputed issues in the case then you have to immediately disclose the document, explaining, in writing, what has happened.
Can I show a document which has been disclosed to me to other people involved in a different case who may be interested?
No. 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). It is different if a document is referred to at a public hearing.
The above explanation of the law as it relates to disclosure of documents is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice.
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 2016. Disclaimer