Should I put a C or a D (or A or R) in the Disclosing Party column?


What the issue is and why it is important

When there are legal proceedings the parties will, at various stages in the process, be sending each other copies of documents which they have kept from the past. This process is generally known as Disclosure of Documents and it is important that there is clarity as to what documents you have kept from the past and what past documents the other side has recently provided you with copies of (disclosed to you).

In most types of legal proceedings there is a main Disclosure of Documents stage part way through the process but there will probably be more limited disclosure of documents earlier on in the legal process (for example key documents may be attached to the "pleadings") and, before formal legal proceedings are started - in the "pre-action" phase - the parties (or solicitors on their behalf) will often be writing to each other setting out their position (often with the, at least implied, threat of the possibility of legal proceedings if the other side does not concede and act on some point) and will often attach copies of selected past documents to support their case, which is a kind of voluntary Disclosure of Documents.

At the "pre-action" phase you would normally set up a "bundle" on Bundledocs and load to it each document which the other side disclose being careful to complete the Disclosing Party column for the document (i.e. the column that appears on the Bundledocs screen between the document date and the document description).

If, later on, proceedings are commenced then the parties will have formal designations in the proceedings. For example the party starting court proceedings may be called the Claimant and the other party the Defendant, or in a tribunal case the party starting the case might be called the Applicant and the other party the Respondent or Objector. When legal proceedings are on foot you would, when loading a document to Bundledocs, use the appropriate abbreviation for a party in the Disclosing Party column such as C for documents disclosed by the Claimant, or D for documents disclosed by the Defendant. Depending on the court or tribunal concerned the parties might not be called Claimant and Defendant but instead Applicant and Respondent in which case you would use A and R respectively. At the "pre-action" stage, before legal proceedings have actually been started, you do not necessarily know who will - if the matter comes to legal proceedings - be the Applicant and who the Respondent as it depends on who starts proceedings first, so at the "pre-action" stage, when you are loading a document to Bundledocs you would use, say, SMITH in the Disclosing Party column if the document has been disclosed to you (e.g. by being enclosed with a letter intimating legal proceedings) by the other parties who are Mr and Mrs Smith.

As well as loading to Bundledocs documents disclosed by the other party you will also be loading relevant documents you already had either because you are about to disclose them or simply because they are relevant documents which have been identified and it is convenient to load them now even though the time for disclosure may be some weeks or months in the future. You should, of course ensure that you complete the Disclosing Party column with your designation (e.g. A if you are the Applicant or JONES if you are Mr and Mrs Jones and proceedings have not yet commenced).

Why it is so important to do this is explained here.

How do you decide whether you are the disclosing party for a document or the other side is?  

This might sound like an odd question because surely it is obvious? If you took a photo in the past then when you disclose that photo you are the disclosing party.

If the other party took a photo and sent it to you 3 years ago and you still have it and you disclose your copy then you are the disclosing party for that copy (the other party, if they have kept a copy and disclose it to you now are the disclosing party for the copy of the document they kept but you are still the disclosing party for the copy you kept).

But what if the other party, when they issued legal proceedings against you, attached to the formal document commencing legal proceedings which was served on you a copy of photo taken 3 years beforehand which you have not seen before and you are now, 6 months later, at the Disclosure of Documents stage of the legal proceedings? Should you include the copy of photo you have now had in your hands for 6 months among the documents you are about to disclose so that you are now the disclosing party for that document? Most people would instinctively say No and they would be right - it is not a document you had before and are disclosing: the only reason why you now have a copy is that it was provided to you by the other side as part of the legal proceedings themselves.     

But sometimes things are not so clear-cut. What if the other party had written to you 12 months ago at the the "pre-action" stage enclosing a copy of a photo taken 3 years previously which you have not seen before, legal proceedings have subsequently been commenced, and you are now, 12 months later, at the Disclosure of Documents stage of the legal proceedings? Should you include the photo you have now had in your hands for 12 months among the documents you are about to disclose so that you are now the disclosing party for that document? Most people would probably still say No but it is not always clear cut because there is no rigid definition of the "pre-action" stage and exactly what counts as "voluntary disclosure".

A letter written one month before legal proceedings are commenced enclosing a photo taken 5 years ago and threatening the very legal proceedings which are actually then issued, a month later, is clearly a letter in the "pre-action" stage making voluntary disclosure of a document. At the other end of the spectrum a letter written to you 5 years ago in which the other party make a complaint and which encloses a (then) recently taken photo would not count as voluntary disclosure of the photo for the purposes of the current proceedings even if the letter at the time actually threatened legal proceedings. This is because it is just too long ago. So if you have kept that photo and/or that letter and they are relevant to the current proceedings then when you disclose them you are the disclosing party (of course if the other party has kept the letter and/or photo they would be the disclosing party when they disclose the copy they have kept).

The practical solution

The practical answer to this dilemma caused by the uncertainly about exactly what counts as pre-action voluntary disclosure is simply to disclose any relevant document which you had in your possession on the day that legal proceedings were issued (so you are the disclosing party) BUT if the document was sent to you by the other party by email or letter relatively recently in circumstances which might be regarded as voluntary disclosure AND it is not a document you had previously, you should disclose the covering letter/email together with the attached/enclosed document as a single composite document taking care to describe it fully like this and giving it a date which is the date of the letter or email (not the original date of any document enclosed/attached):
 

 Document Date Disclosing Party Document Title
 
 1 Jul 2020

 12 Jul 2020 12.43.23
 
 A

 A
 
 Letter Smith to Jones enclosing photograph

 Email Smith to Jones with attached documents



This ensures that it is not overlooked but also, crucially, makes clear the circumstances in which you now come to have the document. This is important because in some cases it matters when you first saw a document so you do not want to inadvertently give the impression that a document you have only seen recently because of voluntary disclosure is a document which you already had if that is not the case.

If a document is handed to you (so that there is no covering letter/email) scan the document in as a PDF and email it as an attachment to yourself with a Subject of e.g. "handed to me by Mr Smith today when discussing situation with him outside my front door" so that you have a record of the date and circumstances in which you received it. You can then, when the times comes, disclose the email with attached document as a composite document as described above.          
   

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This page was lasted updated in July 2020. Disclaimer