Handling documents during research and voluntary disclosure


What the issue is and why it is important

When there is a legal dispute between parties, the court or tribunal, if matters get that far, will decide the dispute based on the evidence. For present purposes evidence can be divided into six categories:

(a.) the evidence of witnesses who tell the court/tribunal what they remember.

(b.) photographs or videos taken recently because of pending or actual court/tribunal proceedings.

(c.) expert tests/surveys/examinations carried out recently, because of pending or actual court/tribunal proceedings, by a surveyor, engineer, surgeon, information technologist, or other independent expert.

(d.) official public records such as records held by the Land Registry, Companies House, records of planning permissions applied for and granted/refused, and publicly available maps produced by, for example, the Ordnance Survey.

e.) non-official publicly available records collected by libraries and by organisations such as Google - e.g. historical satellite images and Street View.  

(f.) communications sent between the parties at the time of court/tribunal proceedings (most of these will not be relevant "evidence" but some could be, particularly if they contain some admission - a statement by a party contrary to what that party is arguing in the legal proceedings - or if the legal dispute is about an ongoing situation on the ground and not just about things which happened in the past). 

(g.) documents which you created or obtained in the past and have kept and documents which the other party created or obtained in the past. These may include letters, emails, invoices, worksheets, bank statements, spreadsheets, accounts, product specifications, incident reports, as well as photos, videos and audio recordings, and reports written in the past for various purposes.

In some cases the last category - documents preserved from the past - consists of a very large number of documents but in other cases there may be only a few documents from the past. Each case is different but for disputes over land such as rights of way, restrictive covenants, and ownership, there are often very few relevant documents from the past, whereas for business disputes there can be a very large number of potentially relevant documents from the past particularly if the relationship between the parties involved the provision of services or the manufacture of goods to meet the particular requirements of the customer (as opposed to the sale of mass-produced goods).

Documents preserved from the past can be relevant first because of what they show about facts which actually existed at the time, and/or, secondly they may also be relevant because of what they show about what facts someone was aware of, or what their beliefs were, or what they told others, at the time. Particularly for the second reason, when someone first saw or, in particular when they first came into possession of, a document, can be important, but whether it will be important in any particular case is sometimes not known until relatively quite late on in the proceedings. For this reason it is important to handle documents carefully not only at the Disclosure of Documents stage of litigation but also before then when doing research and during what is sometimes known as "voluntary disclosure". Perhaps the easiest way to illustrate why this is important is to give examples of what not to do.

Examples of what not to do


EXAMPLE 1

15 years ago you bought a house. You have kept the estate agents details, and letters and documents which your conveyancing solicitor sent you, in a cardboard file. The house is an old house and the people you bought the house from also gave you, at the time, some old maps, plans and documents which were of historical interest, and you put these in the same cardboard file. About a year ago a query, which turned into a dispute, arose with your neighbour who claimed that part of what you had always thought of as your garden was in fact part of their registered title. During discussions with them, they gave you copies of some old documents and you filed them away in the same cardboard file. You then started to do your own research, getting historical documents from the Land Registry and other public sources, and from other neighbours, which you also stored in the same same cardboard file. A few months later your neighbour's solicitors wrote to you about the dispute enclosing copies of historical documents, and you filed their letter in the cardboard file. You also filed the documents enclosed with their letter separately in the cardboard file. A month later, thinking about the dispute, you decided to go through the cardboard file and sort everything into chronological order.

Legal proceedings have now been started and it turns out that one of the issues in the case is whether you believed (until recently) that you owned the disputed land and whether, if you did, your belief was reasonable. Because it is now clear that what documents you saw when you bought the house are important - because relevant to the reasonableness of your belief - you look through the cardboard file to find the documents you were given when you bought the house. But you can't work out which they were. You pick up a conveyance and ask yourself: was that one of the documents you were given originally or did you obtain that from your recent research, or was it one of the documents which your neighbours' solicitor sent you recently, or a copy your neighbours gave you when you met them recently? 


EXAMPLE 2

You have been buying services from a supplier for over 10 years and you have a file for that supplier. It contains letters, brochures, purchase orders, invoices, statements, agreements, and a number of versions of the supplier's term and conditions. About 6 months ago a dispute arose about the quality of the services provided in the past and you have been withholding payment. You tried, unsuccessfully, to come to some resolution by phone, and you have now received a letter from the supplier setting out their position. Enclosed with that letter are a number of documents. You reply to the letter and put your reply, together with their letter, and the documents enclosed with it, in the file. Eventually you get a letter from the supplier's solicitor also enclosing some documents. Again you reply to the letter and put everything in the file for the supplier. A month later, thinking about the dispute, you decide to go through the file, sorting everything into chronological order.

Legal proceedings have now been started and it turns out that one of the issues in the case is whether you had received version 11.6 of the supplier's terms and conditions (dated 10th April 2012)  before you sent a purchase order to them on 1st August 2014. You look through the file for the supplier and there is a single copy of the version 11.6 terms and conditions there but when did you receive it? Has it been in the file for a while or was it one of the documents sent to you recently by the supplier or by their solicitor?.         

How to handle documents correctly

The ideal is to be sure exactly when, from whom, and in what circumstances you received (or created) every document you have. Often this ideal is not be achieved completely, typically because the matter will only recently have becomes as contentious and important as it now is. But one thing you can, and generally should, now do is to create three separate high-level computer folders as follows and load copies of documents into them. 

1. Documents you have recently obtained from the other party (or their solicitors)

2. Documents you have recently obtained from other sources (e.g. public registers) or recently created (such as recently taken photos)

3. Documents you created in the past and documents you obtained in the past

Note the difference between when a document was created by someone else and when you obtained it. For example if, yesterday, the other side sent you a copy of a conveyance dated 1st May 1950, you would load a copy into 1, not 3. 

At this point you will be wondering where the dividing line is between recently (for folders 1 and 2) and in the past (for folder 3). This depends on the individual case but in the great majority of cases it is fairly easy to identify. When a legal dispute which results in litigation arises, it may concern things which have happened some time ago, or a situation which has been continuing off and on for a few years. There may have been complaints in the past but there will generally have come a point when things have come to a head and one or either party (or both) will start to think about looking seriously at their legal rights with a view to litigation if - perhaps after a bit of research - they think they may have a good legal case. Then often over the next few weeks or months there is some formal correspondence before litigation actually starts. Generally the effective dividing line between recently and in the past is when a party starts to do some research and starts to try to obtain documents from public registers or other third party sources, or starts to correspond formally with the other side, either sending documents to them or asking them to provide copies of documents. When a party starts to correspond formally with a view to litigation asking for, or providing, documents this is often called "voluntary disclosure" to distinguish it from the compulsory disclosure of documents which the court/tribunal usually formally directs after proceedings are issued. Documents sent to you during voluntary or compulsory disclosure are stored in folder 2 and documents you obtain by your research are stored in folder 3.            
   

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 September 2017. Disclaimer