Disclosure Statement/Certificate

At the Disclosure of Documents stage, when disclosing documents in your control, you may need to make some kind of statement. Some court/tribunals (e.g. the Business and Property Courts) generally do require this and some tribunals (such as the Property Chamber - Land Registration of the First Tier Tribunal) generally don't, but it depends on the exact order made in the particular case. If a statement is required the exact form of the statement (and whether it is called a disclosure statement or a disclosure certificate) and what matters the statement needs to deal with will depend on the rules of the particular court or tribunal.

If a disclosure statement/certificate is required it will normally include confirmation that you have complied with the order regarding disclosure of documents within your control and may require you to list or describe any documents which used to be in your control but which no longer are and which, had they still been in your control, would have fallen within the category of documents ordered to be disclosed. You may be able to identify some documents no longer in your control from references in documents you still have. For example if you have a letter which was written to you dated 30th September 2013 which commences "Thank you for your letter of 25th September 2013" but you do not now have a copy of a letter by you dated 25th September 2013 then, unless you have some reason to suppose that that is a mistake, you know that you must have sent out a letter dated 25th September 2013 and that that is therefore a document which you used to have in your control but no longer do. And if the 30th September 2013 letter is a document which comes within the category of documents which the court's/tribunal's order requires to be disclosed, it is likely that the letter it is replying to - your letter of 25th September 2013 - will also be a document covered by the order and so should be listed in your statement. If you are aware of a group of documents (which would come within the category of documents ordered to be disclosed) which used to be in your control but no longer are, and if it is not possible to identify individual documents, you should describe, in your statement, the class of documents with reasonable precision. For example if the case is about land you bought in 2003 and it is clear that the conveyancing file, which was routinely destroyed some years ago by your conveyancing solicitors, would have contained documents coming within the category of documents ordered to be disclosed, you can describe the group of documents as e.g. "solicitors' conveyancing file for the purchase of 10 St. John's Road in 2003". Even though you may never have seen most of the documents in your conveyancing solicitors' file they would still have been documents which used to be in your control if, while they still existed, you had the right to require the solicitors to send them (or at least copies of them) to you.

As well as requiring the listing of documents no longer in your control, the rules of the particular court or tribunal may require the statement to deal with one or more of the following
  • Confirmation that you have provided copies of all documents the rules themselves require you to (usually the rules will require you to disclose all adverse documents you are aware of - which are not privileged - whether or not they are covered by the specific searches you are ordered to carry out)
  • Confirmation that you have carried out any specific searches ordered and have provided copies of all non-privileged documents found
  • You do not have to provide copies of privileged documents but some court rules may require you, in the statement, to identify (as a group) the documents you are claiming privilege for and give the reason why you say they are privileged
  • Some courts/tribunals require you to attach to the statement a list of all the documents you have provided copies of.
If you are required to attach to the statement a list of all disclosed documents, use the list ("index") produced by DCS - don't type up a new list. This might seem obvious but it is surprising how many people type up a list. There is no need to and it can lead to error. If you, as you should, load all the documents you are to disclose into the My Documentary Evidence DCS case, and generate the list of documents ("Index") from that DCS case, it reduces the risk of error. Immediately after the Disclosure of Documents stage you will be asking your barrister to advise on the case, taking account of the documents you have found and disclosed (as well as documents disclosed by the other side) and, later on, you will be finalising (or collaborating in the finalising of) a trial bundle of documents to be used at the final trial using copies of documents from the DCS cases. If, at the Disclosure of documents stage, you generate the disclosure list from the My Documentary Evidence DCS case, you know that your documents which you are providing to the barrister (on DCS) so that they can advise, are exactly the same set of documents as are on the disclosure list you give to the other side. But if you type up a separate list, and you have accidentally missed off a document from the typed list, your barrister may, for example, be advising that you have a good case based on some document which you are later prohibited from using at trial because you have mistakenly not included it on your typed list. No system is foolproof but using the My Documentary Evidence DCS case as your store of your evidential documents, and generating any list from it, helps to reduce the risk of mistakes which could damage your case. 

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 and the particular disclosure orders/rules which apply to that particular case. This information page should not be used by, or relied on, by anyone else. 

This page was lasted updated in August 2019. Disclaimer