Disclosure - Identifying the evidential documents you will be relying on


Contents

  1. 1 Introduction
  2. 2 When you need to start identifying evidential documents to rely on
  3. 3 How to identify the evidential documents you need to rely on
    1. 3.1 Probative documents
    2. 3.2 Provenance
    3. 3.3 Background or Narrative Documents
  4. 4 FAQs
    1. 4.1 What is a "document"?
    2. 4.2 Why do I need to identify what evidential documents I will be relying on - why not just use every document I happen to have?
    3. 4.3 Why is it only documents which relate to "issues in dispute" which I need to rely on?
    4. 4.4 It is a busy time for me but I can identify, by the deadline directed by the court/tribunal, 95% of the documents I will need to rely on, and I can find the other 5% well before the trial which in any event is many months away. Is that OK?
    5. 4.5 At the disclosure of documents stage months ago I did my very best to find and identify the documents I need to prove my case, but since then I have been thinking about the case and have now realised that there is another document which will help my case. Should I disclose it and try to use it at trial? 
    6. 4.6 Should I load video and audio files to the My Documentary Evidence DCS case?
    7. 4.7 Should I load to the DCS My Documentary Evidence case correspondence between myself and my barrister?
    8. 4.8 Should I load my witness statement to the DCS My Documentary Evidence case?
    9. 4.9 Should I load, to the DCS My Documentary Evidence cases, witness statements and correspondence with potential witnesses?
    10. 4.10 Should I load expert reports to the DCS My Documentary Evidence case?
    11. 4.11 Should I load Litigation Correspondence to the DCS My Documentary Evidence case?
    12. 4.12 Should I load pleadings to the My Documentary Evidence DCS case?
  5. 5 Disclaimer


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 a DCS case named My Documentary Evidence 

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

It is important to identify the documents you will be relying on well before the point that the court's/tribunal's rules/directions require you to disclose them, 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 want to ask the court/tribunal to include in any disclosure order the court/tribunal eventually makes.

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

A 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 search for other evidential documents which may also help your case.

Note: immediately before writing an Opinion the barrister may have gone though documents with you in conference to identify a set of documents to be considered when writing the Opinion. Because this process of identification of documents for the Opinion is limited by time constraints, you should not assume that any document which was available but which was not, in the end, mentioned in the Opinion, is not probative. This is particularly so if the Opinion was an initial Opinion provided before further information had come into focus. An Opinion may indicate some documents which are probative but it cannot tell you definitively that a document is not probative. That is something you have to decide as explained below.

The pleadings tell you what issues are in dispute. The probative documents which you will want to rely on are documents which support your case,  or undermine the other side's case, because they 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 you are the builder and you know that no specific completion date was agreed.

To decide what documents support your case or undermine your opponent's case, 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 you, the builder, claim)? – 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 you saying that you could not commit to a specific date for completion clearly supports your case and undermines householder's case, but less conclusive documents may also do so. 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 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 document which supports your case and undermines the other party's case on the issue. Some documents strongly suggest where the truth lies; other documents provide weaker evidence, but, when including on the disclosure list at the Disclosure of Documents stage documents you rely on, when you find a relevant document you do not need to work out exactly how strong the evidence it provides in your favour is: as long as it at least tends to suggest that you are right on a disputed issue, it is a document which supports your case and undermines the other party's case on the issue.  

When it gets past 1st November and the work is not complete, emails between the householder and you, the builder, at that stage may also support your case, or undermine the other side's case on the issue of whether the date of 1st November was agreed at the outset. For example an email from the householder expressing concern about delay, but not mentioning any prior agreement as to any specific completion date, undermines their case because, if there had been an agreement as to a specific completion date, you would, on the face of it, have expected that to be mentioned. 

These are just examples from a hypothetical building dispute to give you the general idea but your case will of course be different with different issues in dispute and different documents which may shed light on the disputed issues in your own case.

Provenance

If a document, on the face of it, supports your case or undermines the other party's case, 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 longer written document) you need to consider, having established that the plan is a document which you wish to rely on, whether there are other documents which are relevant to its provenance which you also need to rely on. 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 provenance of the plan. 

Sometimes it is necessary to consider not just what inferences can be drawn from single documents in isolation but whether further inferences can be drawn from documents in combination. For example in a case in which the historical route of a driveway is in dispute, a photo showing the driveway may be undated and it may be necessary to relate some other feature which is also shown in the photo with a reference in a dated letter in order to establish the earliest and latest time the photo could have been taken, and therefore whether or not it sheds light on the route of the driveway in the date range relevant to the dispute.

Background or Narrative Documents

In addition to documents which support your case on disputed issues or undermine your opponent's case on disputed issues, you should consider whether there are "background documents" which, although neither supporting nor undermining either party's case, would nevertheless 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 support/undermine a party's case but, if there are no such maps, in that case a map showing where the relevant properties are, even if it neither supports nor undermines either party's case, can nevertheless 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 itself neither supports nor undermines either party's case on any disputed issue. Background documents can be useful but beware of relying on large numbers of background documents (which neither support nor undermine any party's case on any issue) 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.


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  support or undermine a party's case on a disputed issue. If you are genuinely in doubt whether documents support your case, you can disclose them anyway (and, as mentioned above, exceptionally a few background documents - documents which 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 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 relate to "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 of any issue in dispute but which help everyone to quickly get their bearings - can be helpful.


It is a busy time for me but I can identify, by the deadline directed by the court/tribunal, 95% of the documents I will need to rely on, and I can find the other 5% well before the trial which in any event is many months away. Is that OK?

No. Absolutely not.  

The purpose of the stages leading up to trial is give each side information about the other side's case so that they can properly prepare, and the court/tribunal will not, without special permission, allow you to use a new document which you did not disclose by the deadline for disclosure of documents.

Note: witness statements are a different matter - they are not normally disclosed until a later stage: the exchange of witness statements stage -  but evidential documents that you will (or might) want to use at the trial - letters, emails, photos, plans, text messages etc. and any audio and video recordings (including evidential documents which will be exhibited to witness statements) - have to be disclosed by the Disclosure of Documents deadline set by the court/tribunal.

This might sound like a harsh rule. If a document is important to prove your case, why should the judge refuse to allow you to use it? But imagine that the boot was on the other foot. Supposing you were the one obeying the court directions and suddenly, a month before the trial, the other side produces a document which seems to greatly increase their chances of success. Very few civil cases which come to court/tribunal are "open and shut" cases (in "open and shut cases" the defendant is usually advised by their lawyers that the best thing is to give in gracefully rather than fight, so those cases don't normally come to court/tribunal) so in virtually every case the outcome is not completely certain. Some facts may be clear but others are in doubt (because of insufficiency of evidence) or (where the motives, words and actions of humans are concerned) open to interpretation. You may have thought that you had a good case - based on the legal advice you received - but it may be that if you had seen this late-produced document at the proper time, you might have been advised to settle, or you might have been advised that you need to get statements from additional witnesses who can give evidence bearing upon what the new document says or suggests. So you would be put at a disadvantage by the last disclosure of the document by the other side.

In times gone by the courts nearly always accepted late-produced evidence because it was considered that any hardship to the other side could be compensated for by costs orders and giving extra time. For example if a defendant offered to settle, once shown, late in the day, a document which should have been produced by the claimant earlier, and the party in default (i.e. the party which failed to produce the document at the proper time) refuses the settlement offer and the matter proceeds to trial, and the claimant wins, the court might, instead of ordering the defendant to pay the costs of the case, order the claimant to pay the costs of the case. Or, if a party asked to be allowed to use a document produced for the first time on the day before the trial, the court might put back the date of the trial and order the defaulting party to pay both the costs of the other side in dealing with the document (e.g. the costs of legal advice, the cost of perhaps carrying out further investigations or interviewing further witnesses) and the trial costs "thrown away" (barristers take some time to prepare in the days before the trial and if the trial is put off those costs are lost because the barrister will have to re-do the preparation when the trial eventually takes place in several months time).

The approach of the courts in the past was well-intentioned. Rather than exclude relevant evidence and possibly, in some cases, reach the wrong result, they would always rather admit the evidence and compensate for any hardship by making costs orders and giving extra time. But this led to a situation where it could take years for cases to come to trial and where the total legal costs incurred could be enormous because of the amount of false starts before trial. It came to be appreciated not only that "justice delayed is justice denied" but also that justice at a price which only the wealthy can afford means that those with less money lose by default because they cannot afford the cost risk of enforcing their rights. So in the last two decades there has been a sea change with the courts and tribunals taking a much stricter approach to procedural failings and generally refusing to allow parties to rely on any document they have failed to disclose at the proper time.

So you need to make sure that you disclose, at the proper time, all documents which you will (or might) want to rely on at trial.  


At the disclosure of documents stage months ago I did my very best to find and identify the documents I need to prove my case, but since then I have been thinking about the case and have now realised that there is another document which will help my case. Should I disclose it and try to use it at trial? 

The first thing to be said - so that there is no confusion - is that at the disclosure of documents stage the court/tribunal, as well as ordering each party to disclose the documents they intend to rely on, will also typically have ordered each party to disclose certain specified classes of documents anyway (irrespective of whether the party intends to rely on them). Obviously if the document which you have come across is within the class of documents which the court/tribunal ordered to be disclosed anyway (and it is not a privileged document) then you have to immediately disclose it to the other side. The other side can then use it a trial if they want to, and, if they do, of course you can rely on it too, but, if they do not want to use it at trial they might object to you using it. 

However assuming that the document you have come across it is not a document which you have been ordered to disclose anyway, but is just a document which you want to choose to disclose and use (perhaps a  photo taken after commencement of proceedings and so privileged but you are considering waiving privilege), there will be pros and cons. Whether it is worth seeking to use the document will depend on a number of factors including

  • How important the document is to your case - does it make your case much stronger or only a bit stronger?
  • How likely is it that your attempt to use the document will be disputed by the other side?
  • If your attempt to use the document is objected to by the other side, how likely is it that the court/tribunal will allow you to use it? This may partly depend on how excusable it was that you have only just disclosed it - is it, for example, a document shown to you by a witness who has just made contact when all previous attempts to trace the witness had failed, or, at the other extreme, is it a document which you have always had, which was easy to find when you looked, but you just hadn't, up to now, made time to properly look?
  • How much will it cost in legal fees to make an application to the court/tribunal to be allowed to use the document?
  • If the court/tribunal allows you to use the document at trial, what costs (or other) orders might the court/tribunal make against you as the "price" for allowing the document to be used?
  • If the court/tribunal does not allow you to use the document at trial, what costs order might the court/tribunal make against you because you have lost your application?

If you want your barrister to advise you on the above, then your barrister will inevitably charge a fee for the advice so the prior question is whether it is worth paying for that advice. It is a statement of the obvious that it is difficult to know when to pay for advice because you do not know what the advice will be before you have paid for it, but as a general rule - to help you decide whether to seek advice - the more important the document for your case, the further away the trial date is, and the more excusable your failure to disclose the document on time, the more likely it is to be worth pursuing.         


Should I load video and audio files to the My Documentary Evidence DCS case?

Video and audio files (e.g. mp3 and mp4 files) count as documents so need to be disclosed if you want to rely on them or if you want to rely on a transcript of them. However generally speaking you do not want to grant your opponent even read access to your DCS cases so you should, rather than loading video and audio files to DCS, instead store the audio and video files themselves 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 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:




Save the placeholder file with a suitable name - e.g.

Video of Farm Buildings                                17 Jun 17

and store only the placeholder page in the My Documentary Evidence DCS case. This ensures that when you generate a Disclosure List from DCS the list includes the audio and video files, and means that the other side, when they receive your disclosure list (and a bookmarked PDF containing the documents including, for video and audio files, the placeholder pages), will be able to view the video file (or listen to the audio file) by clicking the link in the placeholder page without having any access to your DCS case (and because the Google link is just a view-only link to that specific file - not a link to a Google Drive folder - the other side can only download that specific video or audio file from Google Drive).

No alterations should be made to files: for example just as a description should not be superimposed on a photo if it was not like that before litigation began, so a video should not be edited to include titles if they were not there originally. 


Should I load to the DCS My Documentary Evidence case correspondence between myself and my barrister?

No. When you get to the Disclosure of Documents stage, you will be using the DCS documentary evidence case 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 the DCS case 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 My Documentary Evidence case?

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 My Documentary Evidence case 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 into the My Documentary Evidence case anything you will not be disclosing to the other side at the Disclosure of Documents stage, in case that results in you disclosing it at the Disclosure of Documents stage by mistake. 

Note that although your witness statement itself is not disclosed at the Disclosure of Documents stage, your witness statement may well refer to documents as exhibits (e.g. "I I refer to the photo marked JJS12 which I took on...") and those documents which are to be exhibited must be disclosed at the Disclosure of Documents stage.   

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.


Should I load, to the DCS My Documentary Evidence cases, witness statements and correspondence with potential witnesses?

No. Similar principles apply to the statements of your witnesses as apply to your own 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. When you get to the Disclosure of Documents stage, you will be using the DCS documentary evidence case 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 into the My Documentary Evidence DCS case anything you will not be disclosing to the other side at the Disclosure of Documents stage, in case that results in you disclosing it at the Disclosure of Documents stage by mistake. 

Note that although witness statements produced for the current proceedings are not themselves disclosed at the Disclosure of Documents stage, the witness statements may well refer to documents as exhibits (e.g. "I I refer to the photo marked JJS13 which I took on...") and those documents which are to be exhibited must be disclosed at the Disclosure of Documents stage.   

Exception: Having said that you do not disclose witness statements for the current proceedings at the Disclosure of Documents stage, I should add that it is different for any statements you may have from other proceedings. Usually any statements served in the past in other court or tribunal proceedings or in Land Registry applications will neither support nor undermine any party's case on disputed issues in the current proceedings, and so will be irrelevant anyway, but if you have any statements served or filed in the past in other proceedings which do happen to support your case or undermine your opponent's case on disputed issues in the current proceedings, you should load them (together with any associated exhibits) to the My Documentary Evidence DCS case and disclose them at the Disclosure of Documents stage. It is only witness statements which are prepared for the current proceedings which are exchanged at the Exchange of Witness Statements 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 My Documentary Evidence case 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 My 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 My Documentary Evidence  case.


Should I load Litigation Correspondence to the DCS My Documentary Evidence case?

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 My Documentary Evidence DCS case. 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.
But generally speaking recent letters making assertions about past events which merely echo contentions formally made in the litigation do not add anything and do not need to be relied on (Why?).


Should I load pleadings to the My Documentary Evidence DCS case?

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. 


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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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