Identifying the evidential documents you will be relying on




Introduction

At a trial in a civil case a Trial Bundle will be produced containing all the documents which the parties wish the court/tribunal to consider. In order to ensure fairness to both parties the court or tribunal will normally order the parties, at an early stage of the litigation, to disclose - i.e. tell each other - which evidential documents they will or might be relying on (i.e. using) at the trial. So you need to identify now the evidential documents you will be relying on. Evidential documents can include (depending what the case is about) such things as letters, emails, title deeds, contracts, invoices, photos and videos. 

If you had engaged a solicitor, the solicitor would carry out for you the work of identifying relevant evidential documents you need to rely on, but as you are instructing a barrister directly (without also engaging a solicitor) this is something you have to do. Inevitably this means that, as you are not a lawyer, you will, to be on the safe side, include any document you think might be relevant as you do not want to weaken your case by omitting something which may be important. However when deciding what documents to include you should keep clearly in mind the following two points:

1. There are some types of document - for example correspondence with your barrister - which you should not include. The reason for this is explained in the FAQs below.

2. The more documents you rely on, the greater the cost in legal fees. How much this matters depends on how many documents are involved. If you have 30 documents in total of which only 10 are in fact relevant, but you include all 30, the increased legal costs would be relatively modest so this would not be a problem (as long as, of course, you do not include any documents in 1 above). But if you have 3,000 documents and you include all 3,000 even though only 1,000 are relevant, that would be a problem because both your legal costs, and your opponent's legal costs would be very substantially increased.

Once you have identified the evidential documents you will be relying on you should load them into DCS, in two DCS "cases" named e.g.

Smith v Jones - Documentary Evidence which Came into my Possession in the Past 

Smith v Jones - Documentary Evidence only Recently Come into my Possession 

The first DCS case is for documents you have had for some time and the second is for documents you obtained for the first time only recently, such as documents you may have obtained by recent enquiries (including from public sources such as the Land Registry or Companies House) or which have been sent to you recently by the other side, or photographs you have taken recently.     


The remainder of this article explains how (and when) to identify the documents you will be relying on.            



When you need to start identifying evidential documents to rely on

Even though you do not have to provide a definitive list of the evidential documents you will (or might) be relying on to the other side until the court/tribunal makes the disclosure order, it is important nonetheless to identify the documents well before the order is made, because the process of identifying evidential documents you already have, which you will be relying on, will help you to also identify other documents which you do not have - but which the other side may have - which may help you to prove your case and which, therefore, you may want to ask the court/tribunal to include in the disclosure order when the court/tribunal comes to make the disclosure order.

For example, if you identify some past correspondence between you and the other party which helps to prove your case, you may find that when you look at that you discover that you do not have a copy of every letter you sent out (because you did not make a copy before you sent it, or because although you did make a copy you have since lost it)  but you know you must have sent the letter because you have a letter from the other side which starts e.g. "thank you for your letter of 15th March..." So  this would be an example of a document which you might want the court/tribunal to order the other side to disclose. You will usually have the opportunity, before the court/tribunal makes the disclosure order, to say what documents or types of documents you would like the other side to be ordered to disclose. Ultimately it is the court's/tribunal's decision what to order but if you can identify, in good time, certain kinds of documents the other party has, or may have, which are relevant and may assist your case, you can ask the court/tribunal to include them in its disclosure order.


How to identify the evidential documents you need to rely on

Probative documents

The written Opinion you have received from a barrister, when advising you about the case, will indicate particular evidential documents which are probative and will help to prove your case but you need to decide whether other evidential documents you have may also help your case. The pleadings tell you what issues are in disputeProbative 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 initially identifying the documents you may rely on, when you find a document you do not need to work out exactly how strongly it supports your case: as long as it at least tends to support it, 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. 

Provenance

If a document is, on the face of it, probative, then its "provenance" - where the document came from, who created it, when and why, will also be important questions. 

The provenance (or at least the apparent provenance) of emails and letters may be clear from the email or letter itself, and the provenance of a photo will usually be described by the person who took it, in their witness statement, but if you have a "standalone" plan, for example (that is, a plan which is just by itself and not part of a written document) you need to consider, having established that the plan is a probative document which you wish to rely on, whether there are other documents which are relevant to its provenance. The plan may have an identifying number which is referred to in a planning application form which accompanied it when it was sent to the planning authority. If you want to rely on the plan, you may also need to rely on the signed and dated planning application form because it helps to show the the provenance of the plan. 

Background Documents

In addition to probative documents, you should consider whether there are "background documents" which, although not probative in themselves, would be useful to assist the trial judge in quickly understanding the background to the case. For example, in a case involving land there may be a number of maps which are probative but, if there are no probative maps, then a map showing where the relevant properties are, even if it is not probative of any disputed issue, can assist by helping the judge to "get their bearings". Or, to take another example, in an employment dispute, an organisation chart showing the position in the organisation of key individuals involved can be useful background information even if the chart is not probative of any disputed issue. Background documents can be useful but beware of relying on large numbers of background documents which are not probative as this simply increases everyone's costs to no benefit and will not impress the judge.

FAQs

What is a "document"?

Anything you have in which information of any description is recorded counts as a document, so letters, emails, photos, plans and text messages are all documents. Even an audio or video recording - e.g. an MP3 or MP4 file - is a document and should be loaded to the DCS documentary evidence cases if its contents are probative and you want to be able to use it (or want to be able to use a transcript of it) at trial.


Why do I need to identify what evidential documents I will be relying on - why not just use every document I happen to have?


When a Trial Bundle is being prepared for the eventual trial, the court/tribunal expects the parties to be reasonable about what previously-disclosed documents each party requires to be included in it and to be considered by the trial judge because including large numbers of unnecessary documents wastes court/tribunal time (as well as increasing each party's costs). But even though it is true that not all previously disclosed documents have to be included in the Trial Bundle (generally a document is only included if either side wants it to be), disclosing large numbers of documents at the earlier Disclosure of Documents stage will also itself increase each party's costs (even if if only a reduced number of documents is eventually included in the Trial Bundle). Of course you have to disclose any document the court/tribunal has specifically ordered you to disclose (unless you are claiming privilege) but when it comes to including, in your disclosure list, the additional evidential documents you will (or might) choose to rely on, you should only list documents which are probative of issues in dispute. If you are genuinely in doubt whether documents are probative or not, you can disclose them anyway (and, as mentioned above, exceptionally a few background documents - documents which are not probative but help everyone to quickly get their bearings - can be helpful) but you should not rely on large numbers of documents which are obviously irrelevant because that would unnecessarily increase everyone's legal costs - your costs as well as the other side's costs because, immediately after both sides have disclosed documents, you will normally be asking your barrister to update their advice on the strength of your case in the light of those documents and the more documents there are to be considered the more that advice will cost. You might not think that it matters greatly that you are increasing the other side’s costs but it might do. Nothing in litigation is certain. It is not just that if you lose you would normally be ordered to pay the other side’s costs. If you win party, but not as well as an offer you turned down, you might have to pay the other side’s costs incurred after you turned down their offer. So it is wise not to increase the other side’s costs unnecessarily.

So you need to identify, early on, the probative documents you will (or might) be relying on so that the list you eventually produce, at the Disclosure of Documents stage, does not contain large numbers of documents which have no relevance. 

   

Why is it only documents which are probative of "issues in dispute" which I need to rely on?

To save time and money, both for the parties and for the court/tribunal, the court/tribunal will accept any point which both parties agree on as being true, and the trial will only be concerned with the judge deciding on those issues which are in dispute between the parties. So in a building dispute about delayed completion of work, if both parties agree that the builder negligently damaged the householder's car and there is no dispute about the cost of repair, and the damaging of the car has no relevance to why the building work was late, then evidential documents relating only to the car damage do not need to be relied on because that is not an issue in dispute.

As mentioned above, exceptionally a few background documents - documents which are not probative but help everyone to quickly get their bearings - can be helpful.


Should I load video and audio files to Caselines DCS?

Video and audio files (e.g. mp3 and mp4 files) count as documents so need to be included in you want to rely on them or if you want to rely on a transcript of them but Caselines charge a per MB fee for storing video files  and audio files so most people choose to store audio and video files outside of DCS in cloud storage. Google Drive is a very convenient (and free) cloud storage system though you should note that it, like all Google systems (including Gmail), is hosted outside the United Kingdom and so may not be subject to the same data protection standards as apply in the United Kingdom. For each video or audio file you will be relying on, create a one page placeholder, select Get Shareable Link, and paste the link into the placeholder page so that the placeholder page looks something like this:


and store the placeholder page in the appropriate DCS documentary evidence case. 


Should I load to the DCS documentary evidence cases correspondence between myself and my barrister?

No. When you get to the Disclosure of Documents stage, you will be using the DCS documentary evidence cases to disclose to the other side the evidential documents you will be relying on (as well as any other documents the court/tribunal orders you to disclose at that stage). So it is important not to load to those DCS cases anything you will not be disclosing to the other side, in order to avoid disclosing it by mistake. You will not be relying on the written Opinion or other written advice from a barrister as evidence and you should not load it up because an Opinion is a frank assessment of the strong and weak points of your case and showing it to the other side would give them an unfair tactical advantage. You may be thinking that it is a bit odd to say that you will not be relying on a barrister's Opinion, but the point is this. The documents you are identifying at the present time are evidential documents - documents which themselves help to prove your case or disprove the other side's case. A written Opinion is not itself an evidential document. It may contain legal arguments but those legal arguments stand on their own merits. Those arguments can be made by your barrister at trial (to the extent that they are still appropriate given e.g. how the witness evidence comes out at trial) but because an Opinion is a frank assessment of the strong and weak points of your case you should not show the written Opinion itself to the other side because that would give them an unfair tactical advantage. Some (not all) legal arguments and factual assertions are of a type which you have to notify the court/tribunal (and the other side) about at the Pleadings stage (if you don't you might not be allowed to use those particulars arguments at trial - so you should have made sure that your pleadings were drafted by a barrister) but a written Opinion which happens to contain those arguments or other arguments is not a document you should disclose to the other party.


Should I load my witness statement to the DCS documentary evidence cases?

No. Witness statements are handled differently from other documents. You do not disclose them at the Disclosure of Documents stage but at a later stage of the litigation process known as the Exchange of Witness Statements stage. Or if you have to go to court and ask for a temporary injunction at an early stage, a short witness statement will be filed and served before the Disclosure of Documents stage, but, whether served before or after, witness statements are dealt with separately from evidential documents disclosed at the Disclosure of Documents stage.There is a reason why the witness statements are exchanged, and showing the other side a witness statement earlier than necessary would defeat the object of simultaneous exchange of each side's witness statements. When you get to the Disclosure of Documents stage, you will be using the DCS documentary evidence cases to disclose to the other side the evidential documents you will be relying on (as well as any other documents the court/tribunal orders you to disclose at that stage). So it is important not to load to those DCS cases anything you will not be disclosing to the other side, at the Disclosure of Documents stage, in order to avoid disclosing it by mistake. 

Note: The process of producing your witness statement will inevitably involve a number of drafts before you are satisfied with the final version and sign it. At the Exchange of Witness Statements stage you exchange your signed witness statement but you should not (except under very unusual circumstances which virtually never occur in practice) disclose the earlier drafts at any stage. The reason for this is that earlier drafts (and any notes you make when writing your witness statement) do not add any extra probative value to it. You will be asked questions about your recollections, set out in your witness statement, at trial, by the barrister on the other side, and the judge will form an impression of the reliability of your memory partly from your answers to the questions, but whether you wrote  something down six times during the process of producing your witness statement, or twenty times, is neither here nor there (of course if someone has said something consistently over a number of years that is another matter, but saying - or rather writing in draft - something multiple times during the process of producing a witness statement is neither here nor there) so nothing would be gained by you disclosing your earlier drafts. Indeed disclosing your earlier drafts could actually disadvantage you because the barrister on the other side (particularly if they do not have anything more substantial to question you about) may try to make something out of differences between drafts and the final signed witness statement. There may be typos in drafts or you may have used one word in a draft, and, when you come to read it, realised that that word could be misunderstood and so substituted a different word which better describes what you remember. So do not disclose earlier drafts - the courts/tribunals do not expect you to.

Exception: Having said that you do not disclose witness statements at the Disclosure of Documents stage, I should add that it is different in the case of witness statements from other proceedings. Usually any witness statement served in the past in other court or tribunal proceedings will not be probative of disputed issues in the current proceedings, so you will not want to rely on them, but if you have any witness statements served or filed in the past (together with any associated exhibits) - 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 and just means the declaration at the end of a witness statement not the whole statement) - which happen to be probative of issues in the current proceedings and you want to rely on them, then you should load them to the appropriate DCS documentary evidence case and disclose them at the Disclosure of Documents stage. 


Should I load, to the DCS documentary evidence cases, witness statements and correspondence with potential witnesses?

No. Similar principles apply to the statements of your witnesses as apply to your witness statement. The signed statements of your witnesses, together with your own signed witness statement, will be exchanged at the Exchange of Witness Statements stage and not at the earlier Disclosure of Documents stage. There is a reason why witness statements are exchanged, and showing the other side a witness statement, earlier on, would defeat the object of simultaneous exchange of each side's witness statements. At the earlier Disclosure of Documents stage, you will be using the DCS documentary evidence cases to disclose to the other side the evidential documents you will be relying on (as well as any other documents the court/tribunal orders you to disclose at that stage). So it is important not to load to those DCS cases anything you will not be disclosing to the other side, at the Disclosure of Documents stage, in order to avoid disclosing it by mistake. 

Exception: Having said that you do not disclose witness statements at the Disclosure of Documents stage, I should add that it is different in the case of witness statements from other proceedings. Usually any witness statement served in the past in other court or tribunal proceedings will not be probative of disputed issues in the current proceedings, so you will not want to rely on them, but if you have any witness statements served or filed in the past (together with any associated exhibits) - 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 and just means the declaration at the end of a witness statement not the whole statement) - which happen to be probative of issues in the current proceedings and you want to rely on them, then you should load them to the appropriate DCS documentary evidence case and disclose them at the Disclosure of Documents stage.    

The process of obtaining a witness statement from a witness will often cause documents to be created - for example, you (or, more likely, an investigator on your behalf) might send an email to a potential witness asking whether they have any relevant information and, if so, whether they would give a witness statement, and the witness may respond by email. To speed up the interview process the witness might write down just before the interview some key information in note form - they might attach post-it stickers to the back of old photos saying what the photo is and roughly when it was taken, and the interviewer will be taking notes at the interview before producing the first draft of the witness statement which the witness is asked to check. There may be several drafts before the witness is satisfied that the statement accurately records what they remember. They then sign and date it and that final signed witness statement (if it is decided to use that witness) which will eventually be exchanged with the other side at the Exchange of Witness Statements stage. 

If is only the final signed witness statement which is shown to the other party and generally only at the Exchange of Witness Statements Stage -  not at the earlier Disclosure of Documents stage. There is a reason why witness statements are exchanged, and showing the other side a draft witness statement, earlier on, would defeat the object of simultaneous exchange of each side's witness statements. So you should not load to the DCS documentary evidence cases things such as the preliminary email exchange, descriptions on post-it notes recently attached to the back of photos in preparation for interview (as distinct from the photos themselves which should be loaded if you wish to rely on them) notes at the time of interview, or drafts of the witness statement because it is very unlikely that you would ever want to try to rely on them. An rare example where you might try to rely on them would be if a witness died after interview but before they had signed a witness statement. In this case you might want to use the interview notes as the next best thing. Generally such material carries very much less weight than if the witness had given a signed statement and given evidence at trial, but it is possible that in these very unusual circumstances you might want to add such documents to your disclosure list so that you can use them at trial, if the information is crucial and no other witness can provide it  But in all normal circumstances you would not try to rely on such documents created during the witness statement taking process. Certainly if you have a signed witness statement from one of your witnesses you will never want to rely on earlier drafts, or on correspondence with the witness during the witness statement taking process.The reason for this is that earlier drafts do not add any extra probative value to the final signed witness statement. The witness will be asked questions about their recollections, set out in their witness statement, at trial, by the barrister on the other side, and the judge will form an impression of the reliability of the witness partly from their answers to the questions, but whether they said, or wrote down, something six times during the process of producing their witness statement, or twenty times, is neither here nor there (of course if someone has said something consistently over a number of years that is another matter, but saying or writing something multiple times during the process of producing a witness statement is neither here nor there) so nothing would be gained by you disclosing correspondence or earlier drafts. Indeed disclosing them could actually disadvantage your case because the barrister on the other side (particularly if they do not have anything more substantial to question the witness about) may try to make something out of differences between drafts or correspondence and the final signed witness statement. There may be typos or the witness may have used one word in a draft, and, when they come to read it, realised that that word could be misunderstood and so substituted a different word which better describes what they remember. So do not disclose any drafts or correspondence with your witnesses - the courts/tribunals do not expect you to.  

Exception: Of course what is said above regarding correspondence with witnesses applies only to correspondence with witnesses once litigation has started (or when starting litigation is being considered). If you have corresponded in the past with a person (before litigation was contemplated) the fact that you are now thinking of using the same person as a potential witness does not necessarily mean that you should not rely on that previous correspondence with them and load it up, if it is probative. Also if a witness provides a document from the past (e.g. a letter they wrote to you or to anyone else some time ago or a letter received some time ago - as distinct from recent correspondence between them and the person taking their witness statement) you can rely on that if it is probative.


Should I load expert reports to the DCS documentary evidence case?

No. In some court and tribunal cases a report from an "expert" such as a medical consultant, engineer, it-consultant or surveyor, is needed. For example, in the case of an unstable wall, a surveyor or structural engineer may be asked to write a report giving an assessment of the present condition of the wall, what remedial work is needed, and how much the remedial work is likely to cost. 

Most court's/tribunal's rules and directions make special provision for expert reports - whether specific permission is needed to rely on them, when they should be exchanged etc. So such expert reports are generally dealt with at a separate stage from the Disclosure of Documents stage.

Exception In exceptional circumstances, however, an expert report might be treated as an ordinary evidential document which needs to be disclosed at the Disclosure of Documents stage. For example in some cases it is legally important to establish not just the objective facts of past events, but also what people at the time genuinely believed the facts to be. If what someone reasonably believed in the past is disputed then what that person read in the past may be probative of what their belief was. People do not always believe what they read but if someone, in the past, commissioned an expert report they may well have believed what it said. So, depending what your case is about, and whether there are any relevant old expert reports, it is possible that you might want to rely on an old expert report as an ordinary document and, if so, you need to load it up to the DCS documentary evidence cases.


Should I load Litigation Correspondence to the DCS documentary evidence cases?

Once litigation has formally started in a court or tribunal, the litigation process itself results in correspondence. Much of this is essentially administrative. One party may send a letter to the other with a view to agreeing what directions should be given - how many days should be allocated for the trial, for example. Such letters are not probative of the issues which will actually be decided at the trial and so do not need to be loaded to the DCS documentary evidence cases. On the other hand there may be some litigation correspondence which is probative which you want to rely on and load up such as
  • A letter or email which is not just about past events but has some current significance such as:
    • A letter or email which communicates a decision the writer is making - for example saying that they are exercising an option which they have under a contract, or giving notice to quit, "rejecting" goods delivered which do not conform with the contract of sale, severing a joint tenancy, or terminating a contract; 
    • A letter or email offering to do something - e.g. offering to do something practical to ameliorate a problem;
  • A letter or email which makes a legal admission, such as acknowledging that another party has good title to land.
  • If your case is about a continuing (or recurring) state of affairs and you, or your opponent, are seeking an injunction to prevent continuation or repetition in future, whether the court grants an injunction may depend partly on whether future continuation is threatened or likely and some recent correspondence may help to establish a party's intentions and help to show why an injunction is needed or, alternatively, why it is unnecessary.
  • A letter or email from the other party saying something about past events which is different from (and therefore casts doubt on) what the other party is asserting in the litigation.

Should I load pleadings to the DCS documentary evidence cases?

No. To the extent that pleadings are evidence (not all pleadings are) they are akin to signed witness statements. They are filed and served at the Pleadings Stage separately from (and before) the Disclosure of Documents stage. 


My business accounts are probative and I want to rely on them. What do I do about the individual documents (purchase orders, invoices, etc.) which the accounts were compiled from?

If a 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 you owned a hotel which had 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 although such evidence may not cover the entirety of the loss because it would not cover, for example, 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 may 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 may 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 all the individual items at trial (and very unlikely that the court/tribunal would agree to do so). Instead what would typically happen would be that the other party would choose to accept at least most of annual accounts as accurate. They might 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, at the Disclosure of Documents stage) as groups by year, and instead of PDF copies of every transaction being provided, it may be agreed that a supervised physical inspection of the original documents can take place at an agreed time and place. Depending what remains in dispute it might eventually be necessary for some transaction documents to be scanned in so that they can eventually be included in the Trial Bundle but for the purposes of saving costs they would not be scanned in wholesale at the Disclosure of Documents stage. 

In such situations, you would make PDF copies of the accounts or other summary documents you wish to rely on and load them to the appropriate DCS documentary evidence case but, for the supporting documents, you would make only placeholder PDFs containing the text “this category of documents may be inspected on request” for each category/date range of transaction documents, like this:-

2009 Cheque stubs (can be inspected by arrangement)
2010 Cheque stubs (can be inspected by arrangement)
2011 Cheque stubs (can be inspected by arrangement)

2009 Invoices sent (can be inspected by arrangement)
2010 Invoices sent (can be inspected by arrangement)
2011 Invoices sent (can be inspected by arrangement)

and load them to the appropriate DCS documentary evidence case. The purpose of this is so that when a disclosure list is created from the PDF file names, at the forthcoming Disclosure of Documents stage, the groups of transaction documents are included on the list, so that they have been formally disclosed, so that you can rely on them at trial to the extent that it becomes necessary to do so.

For more information about how to handle summary and transaction documents see here.


If I do not disclose a document to the other side because I do not think it is relevant but, later on, it occurs to me that it is relevant, can I then disclose it late and still use it at the trial? 

Generally No or, at least, not easily. Litigation is expensive and in order to try to limit expense, and be fair to both parties, the courts and tribunals set deadlines for various stages by which you have to indicate (1) what your pleaded case is (2) what evidential documents you will be relying on and (3) your witness evidence, and will not normally allow you to go back, after a deadline has been passed, and add to your pleaded case, or rely on additional evidential documents, or use additional witnesses. Exceptionally sometimes there are special circumstances - for example if a document only came into existance recently, so that it would have been impossible for you to have disclosed it earlier - in which the court/tribunal may give permission for a late-disclosed document to be used (and sometimes the other side will want to use the late disclosed document at trial in which case you can, of course, also rely on it) but you should not depend on your case being exceptional and you should do all you can to ensure that every document you might want to rely on is disclosed by the deadline ordered by the court/tribunal. This means that any research you want to carry out (e.g. searching public registers such as the Land Registry or Companies House) must be carried out before the court/tribunal ordered deadline for Disclosure of Documents.


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.


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