Disclosure Statement/Certificate

At the Disclosure of Documents stage, when disclosing documents in your control, you will need to make some kind of statement. 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 but all courts and tribunals, when ordering you to provide copies of categories of documents within your control, will also require you to list any documents within those categories which used to be, but are no longer, in your control, explaining what has happened to them. So whatever else the rules of the court/tribunal require, a statement at least listing documents no longer in your control will always be required.

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 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 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, if it is not possible to identify individual documents, you should describe, in your statement, the class of documents with reasonable precision. 

As well as listing 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 bookmarked PDF and 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. 


So those are the kinds of things which the rules of particular courts/tribunals may require you to deal with on a disclosure statement. As to the precise form of the disclosure statement/certificate, some court rules prescribe a particular form which you can download from the internet whilst some tribunals specify what the statement should include without specifying any particular form. The example shown below is not the exact format required by any particular court or tribunal but is just to give you a general feel for what a disclosure statement may look like. 



DISCLOSURE STATEMENT


In the

Claim No.

 

Claimant
(including ref)

 

Defendant
(including ref)

 

Date

 

Party Returning form

 

 

 

 


 

 

 

 

 

 

 

 







I confirm that:-


1. I have disclosed and provided PDF copies of all documents I am aware of which are now in my control which are adverse to my case on any issue in the proceedings unless they are privileged.


2. I understand that I must inform the court/tribunal and other parties immediately if any further adverse document comes into my control at any time before the conclusion of the case.


3. I have, in the past, had the documents listed below (which are adverse to my case) but they are no longer in my control

     List and number here, the documents you once had in your control, but which you no longer have. For each document listed, say what has happened to it.







4. I have carried out searches for particular types of documents in my control (as required by the court's/tribunal's order dated .............) and I have disclosed and provided PDF copies of them unless they are privileged.



5. I have, in the past, had the documents listed below (which would come within the court's/tribunal's search order) but they are no longer in my control

     List and number here, the documents you once had in your control, but which you no longer have. For each document listed, say what has happened to it.







6. I have provided the copies in the form of a bookmarked PDF containing each document in chronological order with a bookmark for each document giving the date, concise description, and assigned Disclosure Identifier/Number of the document. Native copies of electronic documents are available on request. 


7. Attached to this statement is a chronological list of the documents copies provided giving the date, concise description, and assigned Disclosure Identifier/Number (delete if inapplicable)


8. I wish to withhold production of the classes of documents listed below (which would otherwise fall within my obligations):


· Communications or other documents prepared during the litigation or when litigation was contemplated for the purpose of the litigation.

· Communications or other documents prepared for the use of me or my legal advisers to enable my legal advisers to advise me whether in relation to the litigation or otherwise.

· Documents containing legal advice.

 

·  Any Without Prejudice communications between the parties. 


 

Signed.................................................       Date.......................................

 

Name..................................................

 



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 December 2018. Disclaimer