Specific Disclosure of Documents




What is Disclosure of Documents?

At a trial in a civil case a Trial Bundle will be produced containing all the documents which the parties wish the court 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 documents they will or might be using at the trial. 

You do not have to eventually include in the Trial Bundle, and use at trial, every document you disclose. You might decide not to use some disclosed documents after all. But you cannot use at trial any document which has not been disclosed - at least not without special permission from the court/tribunal. So it is important to consider carefully what documents you need to rely on and, therefore, disclose.

As well as disclosing documents which you will (or may) be relying on at trial, the court/tribunal will typically order you to disclose additional documents in case the other side wishes to rely on any of those additional documents at trial. Similarly the other side is likely to be ordered to disclose to you not only the documents they propose to rely on but also some additional documents.

Exactly what additional documents each side will be ordered to be disclosed depends on the particular court or tribunal and the type of case but, just as an example, the court might order you to disclose "All invoices sent to company X between 1/1/1998 and 31/12/2004"

Note if the court/tribunal instead makes a general order for disclosure - e.g. orders you to disclose "every document which is, or has been, in your possession or control which is relevant to any disputed issue in the case" then this article is not applicable - see here instead.

The court/tribunal may also order parties, at the same time as sending to each other lists of documents, to send each other copies of the documents themselves. Alternatively the court/tribunal may simply order parties to supply copies of documents from the list if and when the other party requests copies.

This process is generally known as "disclosure of documents" though, depending on the court or tribunal, sometimes other names are given to the process. Strictly speaking, in a court subject to the Civil Procedure Rules - i.e. the County Court and High Court -  it is the process of providing a list of documents which is "disclosure" and when copies of documents are sent this is known as "inspection", but the phase "disclosure of documents" tends to be used as a general term for the whole process.


What do I need to include on my disclosure list?

You should include:-

1. Every document which you wish to rely on at trial must be disclosed but...

2. Don't disclose any correspondence with your lawyer or any written advice from your lawyer – that is privileged

3. Don't disclose without prejudice correspondence - i.e. correspondence in which settlement offers are made and responded to - that is privileged  

4. Don't disclose witness statements or the report of an expert you have instructed in connection with the litigation. The court/tribunal orders or rules will make special provision for when these need to be provided but they are dealt with separately from the general Disclosure of Documents stage. 

5. Don't disclose correspondence with an expert you have instructed in connection with the litigation or the expert's report – that is privileged (though sometimes the court/tribunal may make a special order that this must be disclosed if you wish to rely on the report). 

6. Don't disclose any correspondence between you and witnesses or potential witnesses – that is privileged (but any old correspondence with them, before litigation or legal advice was thought of, is not privileged and should be included if you wish to rely on it to support your case or if it comes within the court's/tribunal's order for specific disclosure.)

7. Do disclose all documents which the court/tribunal has specifically ordered to be disclosed (unless you are claiming privilege for particular documents).


Why do I have to work out what documents need to be disclosed - why not just disclose everything I 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 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.
   

When listing documents I rely on why is it only documents which are probative of "issues in dispute" which I need to list?

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 documents relating only to the car damage do not need to be included on the disclosure list (unless the court has specifically ordered you to disclose them for some reason) 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.


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 included in your disclosure list if its contents are probative and you want to be able to use it (or a transcript of it) at trial.



Producing the Disclosure List and keeping records

It is important to keep records, in one ring binder, showing what documents you have disclosed and to keep in a second ring binder records of what the other side has disclosed to you. By records I mean not just the disclosure lists themselves but any relevant correspondence. For example the other side might have an item named "invoices, various dates" on their Disclosure List. This would be bad practice because each document is supposed to be listed individually with its date. However rather than issue a formal Application to the court/tribunal for an order that the other side produce a more detailed list (which would increase both side's costs and cause delay) it is in most cases better to deal with the matter by correspondence. So you would ask the other side for copies and, when you receive them, write back listing the invoices you have received copies of, and keep a copy of all this correspondence in the relevant ring binder.

It is important that you organise the records in the ring binders so that if any query arises as to whether you disclosed a particular document to the other side, you can check and prove that you did, and likewise if any query arises as to whether the other side have disclosed a particular document to you, you need to be able to quickly check and be able to prove whether they did or not. Here are some examples of when it might be necessary to check.

  • Generally a party cannot use at trial a document it has failed to disclose, so when the time comes for the trial bundle to be produced, and the parties are discussing what documents each requires to be included in it, either party might query whether a document which the other side wants to be included was ever disclosed.
  • When a witness on the other side is being cross-examined as the trial, if they mention the existence of a document which has not been disclosed then an application can immediately be made to the judge for a disclosure order and in order to make such an application records are needed which prove that the document was not disclosed.

Some courts/tribunals only require you to provide copies of documents and do not require you to provide a list. And some courts which ordinarily require lists allow the parties to dispense with lists by agreement. However it is best always to provide a list as it helps to avoid disputes later on about exactly what documents each party provided.  

Before computers became widely available it was common for disclosure lists to be typed up, but a much better way of producing a disclosure list is to first make PDFs of each document and then generate the list from the PDF names. If you have loaded documents into DCS, in two "cases" named Smith v Jones - Documentary Evidence which Came into my Possession in the Past and
Smith v Jones - Documentary Evidence Recently Come into my Possession you can use DCS to generate, for each "case" a list of the documents as a Word document, and you can then use the two lists together as your Disclosure List after you have added a suitable heading (e.g. if you are the Claimant  Smith v Jones - Claimant's Disclosure List - Documents which came into my possession in the past and Smith v Jones - Claimant's Disclosure List - Documents which have recently come into possession), and saved them as a single PDF. 

Note: Generally the court/tribunal rules do not require you to separately identify documents which recently came into your possession and the documents which came into your possession in the past, but it is generally helpful to do so as which documents you were aware of in the past and which documents you have only seen recently can be important in some cases.

You can then provide the documents to the other side (either giving direct read access or by downloading the documents from DCS as PDFs and sending them using a file transfer system) together with a PDF copy of your Disclosure List.

LP




FAQs

If I am using Caselines DCS, should I load video and audio files to Caselines?

Caselines charge a per MB fee for storing video files (e.g. mp4 files) and audio files (e.g. mp3 files) so most people who use DCS for all other documents, 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 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 DCS. This ensures that when you generate a Disclosure List from DCS the list includes the audio and video files. 


On my disclosure list should the documents be numbered?

If yours is a court case subject to the Civil Procedure Rules then you should number the documents on your list. One reason for this is that under the Civil Procedure Rules an order for "disclosure" only requires the parties to initially provide lists of documents. Actual copies of documents only have to be provided when requested and the fact that each document is numbered means that a party requesting copies can just quote the number of each document it requires a copy of. In some tribunals the usual disclosure order is that the parties must provide a list and automatically provide copies of all documents on the list without waiting to be asked. In this case the disclosure order may not require the documents to be numbered on the disclosure list but, even if not required, many people think it is still useful to number the documents for ease of reference.    


If I have multiple copies of a probative document, do I have to disclose every copy separately?

Generally no. If the copies are identical then you just make one PDF copy and the document is listed once on your disclosure list. If the copies contain differences - e.g. one contains an annotation - then you would treat them as two separate documents (and disclose both) only if the difference is significant for the disputed issues in the case.


Should I include litigation correspondence on my disclosure list?

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 added to the disclosure list. On the other hand there may be some litigation correspondence which is probative 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 a party saying something about past events which is different from (and therefore casts doubt on) what that party is asserting in the litigation.
Such probative correspondence should be added to your disclosure list if you wish to rely on it.

My business accounts are probative and I want to rely on them so I will disclose 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, and disclose these in the usual way, and make 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)

So that when a disclosure list is created from the PDF file names the groups of transaction documents are included on the list. 

If the other side does ask to inspect the transaction documents then if they are in paper form a time will need to be arranged for them to come and inspect them in person in your presence. It is good practice to offer to scan in and provide PDF copies of any particular documents the other side are particularly interested in - it makes it easier for them and also means that you can investigate further to try to guess why the other side might regard that particular transaction document as significant. If the transaction documents the other side wish to inspect are documents on computer/tablet/phone etc. then they can be sent using e.g. Sendfiles.

What should I do if I accidentally miss a document off my disclosure list?

Sometimes it happens that a document turns up after the disclosure list has been sent out. For example, a document which you have might have been misfiled and be discovered by you when you are working on some different matter. Or a document might come into your hands for the first time after you have sent out the disclosure list. If the document is probative of disputed issues in the case and you want to rely on it (or if it is part of a group of documents which the court/tribunal has specifically ordered you to disclose, and is not privileged) then you should immediately disclose the document by sending a copy to the other side, explaining, in writing, what has happened.

Should I automatically send copies of all the documents on my disclosure list to the other party or should I wait for them to request copies? 

Depending which court or tribunal it is you may be required to provide a list of the documents you are disclosing together with copies of the documents themselves. 

Some courts/tribunals only require you to provide a numbered list of documents initially and you only have to provide copies of particular documents if and when the other party requests a copy but, even where this is so, if you have the documents in electronic form (i.e. on a computer, tablet, phone etc.) it is normally best to provide copies at the same time as the list without waiting to be asked. One reason for this is that if you make a clerical error in describing a document on the list (e.g. giving it the wrong date) and you are not asked for, and do not provide, a copy, the error may only come to light just before the trial and you may be barred from using that document at trial because it was not disclosed, whereas if you had sent a copy it would be difficult for the other side to argue that you should be barred from using it because, even if by accident it was missdescribed on your list, what document it was will have been obvious to the other side from the copy you supplied at the time. However although it is normally best to send copies automatically, this may not apply where large numbers of transaction documents are concerned.

What format should I send copies to the other side in?

Unless the court/tribunal rules require copies to be sent in paper form it is usually most convenient to send documents as PDF copies unless the other side specifically request a different format. For example if the authenticity of a email is disputed a file in the original format (e.g. EML) might be requested but generally it is easier for everyone if a PDF copy is provided. Audio and video files should be sent in their original format - e.g. MP3 or MP4. No alterations should be made to files: for example a description should not be superimposed on a photo if it was not like that before litigation began, and a video should not be edited to includes titles if they were not there originally. Of course when providing a copy of the file, you would give the copy a file name which is a concise description of the file (e.g. "Video of garden" or "Photo of garden") and that name, together with the date the video or photo was taken, will appear on the disclosure list.  


Can I show a document which has been disclosed to me by the other side to other people involved in a different case who may be interested?

No. You can only use documents disclosed to you for the purpose of the litigation they are disclosed in and must keep them confidential unless the court/tribunal gives permission for you to use them in some other way (such as in a different case). It is different if a document is referred to at a public hearing.   


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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