Disclosure - Keeping Records of Disclosure

In most civil cases the court or tribunal, as one of the steps leading up to the trial, will order each party to send to the other a list of, and copies of, those documents which that party propose to rely on at trial and other documents which are probative of the disputed issues in the case. The court/tribunal may also order parties, at the same time as sending to each other lists of documents, to provide copies of the documents themselves. Alternatively the court/tribunal may simply order parties to provide copies of any documents from the list which the other party specifically requests a copy of. This process is called disclosure of documents.   

The process of providing copies of documents is sometimes called inspection of documents. This is partly because, in the days before computers and photocopiers, a party would call by appointment, inspect the other party's documents, and make their own copies in manuscript, and partly because, although copies of paper documents are nowadays routinely made using a scanner rather than by hand, very occasionally it is still necessary to actually look at the original paper document if, for example, it is very faded.

The process of disclosure of documents normally occurs fairly early on in the litigation process. Many months later, when a paginated and indexed bundle of documents is being prepared to be used at the trial, towards the end of the litigation process, it sometimes happens that a dispute occurs as to whether a party had, many months earlier, complied with its legal duty regarding disclosure of documents. Generally speaking if a party has failed to comply with its duty to disclose a document, the party needs the special permission of the court or tribunal to use the document at trial if the other party objects. Whether the other party is likely to object may depend on how significant the document is. If there are 7 very similar photographs taken at the same time and a party has accidentally only sent copies of 6 of them at the inspection of documents stage, then whilst that is wrong and regrettable, in practical terms the other party is not prejudiced by the use of the seventh photograph at trial if that party has been provided with the other 6 at the inspection of documents stage, so there is unlikely to be an objection. Equally, in this situation, the first party is unlikely to press to use the 7th photograph at trial if it can use the other 6, so a live dispute on the point is unlikely.

Sometimes, of course, a party is very happy that a new document has been included because they feel it actually helps their case so that, whilst it was wrong for the other party not to disclose it earlier, they are not going to object to it being in the trial bundle, indeed they may insist that it is included in the bundle.

However, at the other end of the scale, if the photograph which a party wishes to use (which it has failed to provide a copy of) is one of a kind and the other party believes it to be misleading (e.g. because of the angle it was taken from or because it is believed to have been taken at a date significantly different from that alleged) the other party may well have reason to object because it may be that if a copy had been provided at the inspection of documents stage, the other party could have prepared in some way (e.g. by seeking further witnesses or perhaps taking its own photographs if what the photograph is of was still available to be photographed) which it cannot now do.

When disputes like this arise the first question is whether it is really true that a party did not provide a copy of a document and the second question is: if so, whose fault was it? The second question arises in those court/tribunals where a party is only obliged to provide copies of specific documents in response to a specific request from the other party for a copy of a document from their list, so the question is whether the other party ever asked for a copy of the document. Sometimes there is a third question, if a party did not request a copy of a document, which is whether there was something misleading or inadequate about the disclosure list which caused a party to fail to request a document (for example if a misdescription of a document in one party's disclosure list caused the other party to wrongly believe that a document listed was one the party already had a copy of).

Because of the possibility of later disputes of this kind, it is important, at the disclosure of documents stage, to do the following:

Make sure that you comply with your obligations to provide copies

A simple way to do this is to provide the other side with PDF copies of all the documents on your disclosure list whether they ask for copies or not - there is then no room for dispute about whether you provided all you should have done. Also if you have inadvertently misdescribed any document in your disclosure list, the fact that you have provided a copy of the actual document should mean that there can be no real doubt - the other party can see the document itself and cannot plausibly claim to have been misled even if there is an inadvertent misdescription in the disclosure list. 

When the other side provide you with copies of the documents on their disclosure list, check that the complete set of documents has been provided

If the other side have provided documents to you as individual PDFs (one PDF per document) and have given each PDF a meaningful file name (e.g. a file name containing the title of the document or the number of the document on their disclosure list, or both) then this makes it easier to check for completeness when storing the documents provided in the Documentary Evidence Disclosed by Other Side DCS case. If the other side have provided you with PDFs which do not have meaningful names and it is not obvious which document is which, you can, for example, send a copy of a particular document back as a PDF saying – e.g. “please confirm that the attached document, which you sent to me, is item 99 on your disclosure list”. (If the other side have sent multiple documents in a PDF you will need to extract the relevant document from the single PDF before you can do this). 

When you receive the other party's disclosure list, it is possible that it may omit some documents which they have previously voluntarily disclosed. They might, for example, have voluntarily sent you a document during pre-action correspondence thinking it was, or may be, relevant but have subsequently decided it is not relevant (e.g. because the pleadings subsequently served indicate that the particular issue they thought it was relevant to is not in dispute after all). If that document is not on your disclosure list (because it is not a document you already had before it was recently disclosed to you) and you consider it to be relevant and a document you wish to rely on, you should, as well as loading it to the Documentary Evidence Disclosed by Other Side DCS case, write to the other side identifying the document in question, which was unexpectedly omitted from their disclosure list, and saying that you will be relying on it. 

So that you can prove later, if there is a query, exactly what was disclosed, it is important to:-

Keep sufficient records at the disclosure of documents stage, which can be referred to later if there is a dispute, in two ring binders

In particular:-

1. Keep two ring binders, one labelled "Claimant's Disclosure" and one labelled "Defendant's Disclosure" (or Applicant's Disclosure, Respondent's Disclosure etc. depending how the parties are named in the case). The other party might voluntarily send you copies of a few of their pieces of documentary evidence before they have to at the Disclosure of Documents stage so set aside two ring binders at the outset even before the Disclosure of Documents stage.

2. In the ring binder for your Disclosure, keep your Disclosure List. Also keep in this ring binder any voluntary disclosure you made prior to the Disclosure List, and and any further disclosure you made subsequent to the Disclosure List (e.g. if you have to write to the other side disclosing a further document accidentally left out of your original Disclosure List). You need to keep in this ring binder also correspondence from the other side asking for copies of documents and your response providing the copies to them. Any other relevant correspondence about your disclosure should also be kept here - e.g. a letter from the other side with some query about your Disclosure List together with your response. You should also keep in this ring binder any notices about evidence which you send to the other side regarding evidence you will be relying on (in some courts you have to give a notice if you intend to rely on certain types of evidence - e.g. photos - as well as disclosing it).

3. Likewise in the ring binder for the other side's Disclosure, keep the Disclosure List which they sent to you and any voluntary disclosure by them beforehand and any subsequent disclosure by them. Also any correspondence about their disclosure and requests from you for copies and their response, and any notices about evidence received from the other side.   

4. Where a letter/email is relevant to both parties's disclosure (e.g. a disclosure list with a covering letter which, as well as being a covering letter, also requests copies of documents from the other side) make a copy and add it to both ring binders.   

5. Preferably do not provide copies of documents to the other side on paper. Rather provide copies as PDFs in such a way that there is a record of exactly what was provided. One way to do this is to create a zip file containing all the documents you are going to provide to the other side and email the zip file to the other side. If the zip file is too large to send as an ordinary email attachment you can load it to Google Drive and then send it as a drive link using Gmail. If you do provide anything on paper, make sure you keep a copy in the appropriate ring binder.  

6. Ask the other party to provide all copies of documents to you as PDFs (rather than on paper) and print out and file in the appropriate ring binder proof of what was received. If, despite your requesting PDFs, the other party sends you paper copies of documents through the post, you should (after scanning in as necessary) carefully preserve the original (including the covering letter, envelope etc.) in the appropriate ring binder.

7. The other side may have disclosed documents to you before the Disclosure of Documents stage as part of pre-action correspondence or perhaps attached to pleadings. It is good practice   

If you keep sufficient records like this then you should have the necessary information to be able to respond to any queries which may arise when the contents to be included in the trial bundle are being finalised - e.g.

Dear Sirs,

I note that you have asked for the following document to be included in the trial bundle I am producing:

"20 May 2009 Quotation No 12345"

Although I can see that on your Disclosure List dated 13th April 2011 there was an entry:

"22. Quotations issued by Defendant, various dates"

when I asked you, in my email dated 15th April this year, to provide copies of documents in a number of entries including this entry, you responded on 18th April with copies of a number of quotations which did not include the quotation you are now seeking to have included. I attach copies of this correspondence. On the face of it you are not entitled to have this document included in the trial bundle. However if you can email a copy of this document to me, I can seek legal advice as to whether or not I should agree to this document being included.


Dear Sirs,

I note that you have included in the trial bundle you have sent me the following document:

"20 May 2009 Quotation No 12345"

Although I can see that on your Disclosure List dated 13th April 2011 there was an entry:

"22. Quotations issued by Defendant, various dates"

when I asked you, in my email dated 15th April this year, to provide copies of documents in a number of entries including this entry, you responded on 18th April with copies of a number of quotations which did not include the quotation you are now seeking to have included. I attach copies of this correspondence. On the face of it you are not entitled to have this document included in the trial bundle. I will seek legal advice as to whether or not I should agree to this document being included.

Normally the contents of the Trial Bundle are agreed at least a week before the trial, and, by the time the trial itself starts, any disputes between the parties as to what was previously disclosed and what can now be included in the Trial Bundle, have been resolved. If the parties cannot agree then a brief note of the reasons for disagreement should be included as the first page in the Trial Bundle (before the index) and it is particularly important to bring to the trial the two ring binders you have kept in case past correspondence needs to be referred to when the judge is ruling on what documents can be included in the Trial Bundle. In fact you should always bring the two ring binders to the trial because sometimes, particularly when the Trial Bundle is produced late in the day, disagreements between the parties as to what it should contain do not come up until the start of the trial itself.

Another reason why it is important to bring the two ring binders to the trial is in case a witness refers to the existence of a document not in the trial bundle. If the document was never disclosed an application for a specific disclosure order can be made. If there is any query over whether or not it was disclosed, the correspondence/lists etc. in the ring binders should provide the answer.

Consider whether you need to challenge the authenticity of a document

There is a difference between the authenticity of a document and whether what the document says is true. For example, say the other side had disclosed a letter written to you at some time in the past, complaining that you had caused an obstruction by parking your car in a particular place at a particular time on a particular date. If you received the letter at the time but you dispute the accuracy of what it says, the letter is still authentic – i.e. it is a genuine copy of a letter actually written on the date it bears. If, however, you think that the letter is a fabrication – that it is not a genuine copy of a letter written on the date it bears because, say, you didn’t receive it at the time and it gives as your address an address which you didn’t move to until a year after the date the letter was supposed to have been written - that would be an example of a document which is not authentic.

Different courts and tribunals have different rules about how and when to give notice that, at trial, you require the other side to call a witness to explain what a document is and where it came from, so that you can cross-examine the witness. Sometimes a notice in a particular form has to be served by a particular date otherwise you are deemed to admit authenticity. In some courts parties only have to provide copies of documents on their disclosure list on request, and then only if the other side agree to pay their reasonable copying charges, but if you do not request copies of all documents disclosed you run the risk of being deemed to admit authenticity of documents you would have disputed if you had seen them. If there are a lot of documents so that copying charges would be substantial, one way round this is make arrangements to physically view all the documents and then decide which you need copies of.        

Consider whether there may be other Documents which you should ask the other party to disclose     

There may be indications in the documents provided by the other party that there are further documents they have which ought to be disclosed. For example they may have disclosed an internal email which responds to a report but have not disclosed the report itself. Or perhaps the body of an email is provided, and you can see from the header that there were attachments, but the attachments themselves have not been provided. Or you might have special knowledge which means that you know, or strongly suspect, that the other party has relevant documents which they have not disclosed. The other side has a duty to comply with any order the court/tribunal makes about disclosure, searching for relevant documents, but they may genuinely not be aware of the existence of certain documents until you specifically ask them to disclose them. For example if the other party is an organisation and you attended a meeting with them you may have noticed a particular employee of that organisation taking notes so you know that those notes exist but the person in the organisation dealing with its disclosure obligations may not be aware of that until you ask them to disclose those notes.      

If the other party discloses the existence of documents but says they cannot provide copies, consider whether you should challenge that

Generally speaking a party has to provide copies of documents on its disclosure list unless it no longer has them and it no longer has control over them. If a party has sent documents to their bank, for example, those documents are still under their control because they have the power to require the bank to return them. And even if the bank is keeping documents as security for a loan, the party still has the power to require the bank to provide copies.


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