Handling documents during research and disclosure


The Problem

When there is problem which becomes a legal dispute, the court or tribunal, if matters get that far, will decide the dispute based on the evidence. One category of evidence is the evidence of witnesses who tell the court/tribunal what they remember. There is also documentary evidence which, for present purposes, can be divided into the following categories.

(a.) photographs or videos taken recently by you (or by someone on your behalf at your request) because of possible/pending/actual court/tribunal proceedings.

(b.) photographs taken in the past by other people which you have recently obtained copies of because of possible/pending/actual court/tribunal proceedings.

(c.) reports based on expert tests/surveys/examinations carried out recentlybecause of possible/ending/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, which you have recently obtained copies of because of possible/pending/actual court/tribunal proceedings.

(e.) non-official publicly available records held by libraries and by organisations such as Google - e.g. historical satellite images and Street View, which you have recently obtained copies of because of possible/pending/actual court/tribunal proceedings.

(f.) documents which you created or obtained/received in the past and have kept. 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. They might include documents you obtained in the past from the sources above - e.g. copies of Land Registry documents you obtained in the past.

(g.) communications (e.g. letters and emails) sent recently by you to your opponent (or your opponent's solicitor if they are represented by solicitors) as part of possible/pending/actual court/tribunal proceedings (most of these will not be relevant "evidence" but some could be, particularly if they contain some concession, or if the legal dispute is about an ongoing situation on the ground and not only about things which happened in the past). 

(h.) communications (e.g. letters and emails) sent recently by your opponent (or by your opponent's solicitor if they are represented by solicitors) to you as part of possible/pending/actual court/tribunal proceedings (most of these will not be relevant "evidence" but some could be, particularly if they contain some concession, or if the legal dispute is about an ongoing situation on the ground and not only about things which happened in the past). 

(i.) documents from the past which your opponent has (voluntarily) recently sent you copies of because of possible/pending/actual court/tribunal proceedings. Those documents may have been created by your opponent (e.g. photos taken) of may have been obtained by your opponent from a variety of sources (e.g. other people, Land Registry, etc.) either recently or in the past. They may include letters or emails sent to your by your opponent in the past.

(j.) documents from the past which your opponent has been obliged to recently send you copies of because the court/tribunal has ordered disclosure of documents. Those documents disclosed may have been created by your opponent (e.g. photos taken) of may have been obtained by your opponent from a variety of sources (e.g. other people, Land Registry, etc.) either recently or in the past. They may include letters or emails sent to your by your opponent in the past.   

Note: documents in category (i) and (j) will probably be sent to you as attachments or enclosures with documents in category (h) but there is a distinction between the recently composed letter or email body itself and the copies of documents from the past enclosed or attached.  

It often happens that there are multiple copies of a particular document, each in a different category. For example in the past when you bought your house your solicitor might have sent you a copy of a particular Land Registry document (category (f)) and you might have recently obtained official copies of documents from the Land Registry (category (d)) as part of your current research. Or your opponent may have recently sent you (category (i) or (j)) a copy of a letter which they send you some time ago (category (f)). 

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 they may shed light on 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, or a copy of a document, can be important. Because of this it is important to handle documents carefully so that you do not lose track of when and in what circumstances you came to have a document or copy of a document. 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


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. Three weeks 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 week 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? 


What NOT to do - 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 2018) before you sent a purchase order to them on 1st August 2019. 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?    

Another reason why it is important to be able to identify what documents have been "disclosed" to you. 

In most legal proceedings there is a disclosure of documents stage at which each party is obliged to send to the other party a list - usually a numbered list - of the documents it proposes to rely on at trial (together with copies of the documents themselves) and often also each party (depending on the court's/tribunal's order) is required to to include other relevant documents they have as well on the disclosure list. Some key documents may be disclosed at the start of the proceedings before the main disclosure of documents stage and, even before proceedings are issued, there may be "voluntary disclosure" of key documents as part of during pre-action correspondence. The rules of most courts and tribunals mean that 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 (or unless they have actually been referred to at a public hearing). So for that reason also it is important to be able to identify which copies of documents were disclosed to you for the purpose of the litigation and are, therefore, subject to this particular restriction, and which copies of documents you already had (e.g. category (f)) use of which is not so restricted     

The Solution - 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 achieved completely, typically because the matter will only recently have become as contentious and important as it now is. But what you should now do is:

Carefully preserve original documents


2. Start a new paper file today to contain any paper documents you receive from today onwards.

3. Don't rearrange the paper documents you already have. For example, if you have a letter enclosing documents with the enclosed documents attached to it by paperclip, don't remove the paperclip. Rather put the letter and enclosed documents in a transparent plastic folder so that they can't become accidentally separated.  When you need temporarily to remove the paperclip in order to scan in the letter and documents in PDF form, put the paper clip back exactly as it was before immediately after scanning.

Keep a record when you receive documents

From now on, if you receive things in the post (or they are handed to or delivered to you) or if you seek out and obtain paper documents scan them in as a PDF the same day and send the PDF as an email attachment to yourself with a Subject of e.g. "Post received today" or "handed to me by Mr Smith today" so that if, in the future, you need to check, you have a record in your email system of when and in what circumstances you received the document.

For things received by email your email system will automatically document when they were received. 

When obtaining documents electronically - e.g. by downloading PDF copies of documents from an official website - store them in a folder on your computer and give the folder a name which records where they came from and when.  


Loading documents to Bundledocs - Document Date column

When you load documents to Bundledocs you give them a Document Date like this:

  Document Date Disclosing Party Document Description
 22 Oct 1998 A Agreement

 1 Oct 2001 A Jones & Co Terms of Business

 15 Sep 2018 A Letter Smith to Jones


with the Document Date being the date the document was created/signed. Where the date you received a document is significantly later than the date it was created/signed, it can sometimes - not always but sometimes - be important to add, in brackets at the end of the Document Description, the date that you received the document (the exact date if you know it or otherwise the approximate date as best you can remember it) as shown below. Usually the Document Description does not need to contain the date the document was created/signed because there is a separate Document Date field but if you are including in the Document Description the date that you received the document you should also include the date the document was created/signed because Bundledocs, by default when you load a document, will automatically set the Document Date to the first date it finds in the Document Description (which you don't want to be the date received).  


 Document Date Disclosing Party Document Description
 22 Oct 1998 A Agreement 22 Oct 1988 (obtained on 5 Feb 2016 from Land Registry)

 15 Sep 2007 A Letter Smith to Jones 15 Sep 2007 (received with Jones & Co's's solicitor's letter of 15 Mar 2020) 

    
The date you received/obtained a document might be important if, for example, you thought for a long time that you owned land but as a result of seeing the document you started to wonder, or if someone told you something and you only discovered otherwise when later you saw the document, or you made an agreement with someone and you only received their standard terms and conditions - or some document referred to - after you had made the agreement. 

Loading documents to Bundledocs - Disclosing Party column

It is important to be able to identify which party has disclosed (or will be disclosing) each document and you should, when loading each evidential document to Bundledocs, type in a A, C, D or R in the Disclosing Party column to indicate whether it is your document (which you have disclosed or will be disclosing at the appropriate time) or whether it is a document copy disclosed to you by the other side. Documents in category (j) are clearly disclosed by the other side as are category (i) normally but sometimes there is a query about the latter. A stands for Applicant, C for Claimant, D for Defendant, and R for Respondent - if legal proceedings have not yet started so you don't know whether you will be Applicant or Respondent etc. just use your initials for your documents and the other side's initials for documents they disclose.

Although it depends, to a certain extent, on the type of legal proceedings, it is usual for parties to be ordered to disclose documents at the following stages of litigation before the eventual trial:-

1. During the pre-action correspondence phase (generally disclosure of documents in this phase, before formal legal proceedings have actually commenced, is voluntary rather than being ordered by the court/tribunal) 

2. At the initial pleadings (Statements of Case) stage

3. At the main Disclosure of Documents stage

4. Late disclosure - occasionally a disclosable document only comes into a party's hands after the main Disclosure of Documents stage so they disclose it immediately they receive it 

By the end of the main Disclosure of Documents stage you need to ensure that the Disclosing Party column for each evidential document contains not only the party identifier - A, C, D, or R - but also a reference to where the document was disclosed by that party. It is good practice (and may be required) at stages 2 and 3 to not only provide copies of the disclosed documents but to provide a numbered list of them so that the number on the list can be used as a reference. So for documents disclosed by the Respondent at the main Disclosure of Documents stage the Disclosing Party column would contain R-22 for item 22 on the Respondent's disclosure list which was provided at stage 3. Even if the Respondent's disclosure list provided at stage 3 does not actually number the documents listed you can still use it by counting the items on the list - e.g. the 22nd entry is number 22 even if it is not actually numbered. Usually, for completeness, a party will include on their disclosure list, at stage 3, the documents already disclosed at stage 2, particularly if no actual disclosure list was provided at stage 2. Or a party might provide a numbered list at stage 2 and then a further numbered list at stage 3 which lists only the additional documents and does not include the documents already listed at stage 2. The important point is that however disclosure has been carried out the reference you provide for each document in the Disclosing Party column must be sufficient to identify where the document was disclosed. So if R has provided a numbered list at stage 3 containing all documents disclosed (including those previously disclosed at stage 2) then you can use a simple number - e.g. R-22 for the 22nd item on the disclosure list at stage 3. But if the disclosure list at stage 3 does not include the documents disclosed at stage 2 you need to use a reference which identifies at which stage each document was disclosed. In this case it is usual to still use a simple number for entries on the main disclosure list (stage 3) but to use some additional identifier for documents which were only disclosed at stage 2. So the 22nd item on the disclosure list at stage 3 would still have R-22 in the Disclosing Party column, but the eighteenth item disclosed at stage 2 might have R-SoC-18 in the Disclosing Party column to show that it is item 18 on the Respondent's disclosure list at the Statements of Case stage (stage 2) not item 18 on the disclosure list at the main disclosure of documents stage (stage 3). You only need to give one disclosure list item reference for a party for each document so if a document is disclosed by the Applicant at both stage 2 (6th on list) and stage 3 (24th on list) you can just give the reference A-24. 

Every entry on a disclosure list should be for a single document. If, however, one party's disclosure list does not list every document individually but lists some documents by group (this is not best practice but you may come across it) then there should be added to the Disclosing Party column also a number to identify the document within the group. For example if the other side is the Respondent and item 12 on their disclosure list says "photos - various dates" the third photo in that group enter R-12/3 in the Disclosing Party column.

Usually any documents disclosed at stage 1 will also be formally disclosed at stage 2 and/or stage 3 but, if not, use PA (pre-action) as an identifier - e.g. R-PA for documents disclosed by the Respondent pre-action which were not included at either stages 2 or 3. Usually there are very few, if any, such documents so putting R-PA in the Disclosing Party column is sufficient. If there were ever a case where a large number of documents disclosed pre-action were not formally disclosed at either stage 2 or stage 3 then additional identifiers might be necessary to specify the dates of the pre-action letters/emails which disclosed such documents.

It is unusual for there to be many late disclosed documents (stage 4) so it is usually only necessary to indicate late disclosure using LATE as an identifier - e.g. R-LATE for documents disclosed by the Respondent after stage 3. Occasionally there is late disclosure of quite a number of documents and in that case there may be a supplementary disclosure list. It is important always to use the identifier LATE for documents disclosed late (because late disclosure can have consequences - the party disclosing a document late may need special permission if they wish to rely on it) but, in addition, a further identifier can be used if there are quite a number of late disclosed documents - e.g. R-LATE-Sup5 for the 5th entry on a supplementary disclosure list from the Respondent.

Many of the documents disclosed by the other side will be the same as documents you already have. If you are sure they really are the same, you don't need to load both identical documents to Bundledocs: just load one. In this case you type in the Disclosing Party column as in this example

  Document Date Disclosing Party Document Description
 27 Oct 1995 A-6 = R-22 Letter Smith to Jones


In the above example the document loaded is the Applicant's copy of the document which is item 6 on the Applicant's disclosure list and item 22 on the Respondent's disclosure list. If, instead, the Respondent's copy of the document had been loaded then it would be identified as shown below:

  Document Date Disclosing Party Document Description
 27 Oct 1995 R-22 = A-6 Letter Smith to Jones


You might think that as the copies are identical it does not matter but very occasionally it happens that two copies appear identical but a significant difference is noticed later on, so it is important to indicate which party's document was actually used to load to Bundledocs.      
   

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 July 2020. Disclaimer