What administrative work is necessary in a court or tribunal case?


Scanner/printer shown above is a Brother MFCJ5625DW     

You can engage a barrister to represent you in court or tribunal hearings, and to draft the legal documents needed for a case but in litigation there are some things you have to do.


Searching for and collating documents and dealing with disclosure

Barristers do not investigate or collect evidence so you will need to look through the documents you have (by "documents" I mean not just formal legal documents but anything written including letters and emails and also, where relevant, photos) and identify relevant documents. If there is a possibility that other people or organisations may have relevant documents you need to look into that as well whether that means seaching public registers or asking private individuals whether they have relevant documents which you can have copies of.

How much effort you will need to put into looking for documents depends on two things

1. Relatively early in the litigation process, many months before the eventual trial, the court or tribunal will normally order the parties to disclose - i.e. tell each other - which documents they will or might be using at the eventual trial but, in addition, the court/tribunal will often order you to disclose further documents - so that the other side can rely on any of those further documents at trial if it wishes to do so. (The other side, of course, is also likely to be ordered to disclose to you not only the documents they propose to rely on but also some additional documents.) Because the court/tribunal's order imposes a legal duty on you, you have to comply with that duty by doing at least the minimum which the order requires irrespective of how relatively important or relatively unimportant the case is to you.

2. How much further you go - beyond the minimum which the order requires - depends on how important the legal proceedings are to you. If the amount of money at stake in the case (including legal fees which the loser is usually ordered to pay) is, from your point of view, relatively modest, you may decide that you will spend no more than a couple of hours - beyond the time taken to ensure that you have complied with teh court's/tribunal's order - looking in your usual paper files and searching for emails and other documents on your computer which may support your case. On the other hand if the case is very important to you, you will want to make more time - even if you are very busy - to look further afield. 

Generally the orders the court/tribunal makes will only require you to disclose certain categories of document which are (or have been) in your control. In your "control" means either physically in your possession or held by someone - e.g. your employee or your bank - on your behalf so that you are at least entitled obtain a copy if not actual possession. So if you search public registers or ask other people not under your control for documents you will generally be deciding to do that voluntarily, rather than being required to do it by the court's/tribunal's order.

However the court's/tribunal's disclosure orders create an ongoing legal duty so that if, for example, you are ordered to disclose all title deeds in your control for a particular property, that means you have to not only disclose those deeds for that property which are in your control when the order was made but you also have to disclose any further deeds for that property which come into your control at any time in the future. So although the order may not oblige you to search public registers such as the Land Registry, if you do decide  voluntarily to ask the Land Registry for deeds for the property (to see if they may help your case) when those deeds then come into your control (when you receive them by post or view them on computer) you are then obliged to disclose them (even if they happen to undermine your case rather than support it) because of the ongoing legal duty to disclose such documents which are in your control.

Sometimes the court's/tribunal's order will require you to search for, and disclose, particular categories of documents which are (or have been) in your control. Sometimes the court's/tribunal's order will simply require you to disclose documents in a particular category which you happen to already know are (or have been) in your control without requiring you to carry out a search. But if you do at any stage carry out a search and find further documents in that category (or happen to come accross them in some other circumstances) then, of course, you have to disclose those further documents.     

The court's/tribunal's order may directly identify the documents to be disclosed by describing them like this:

"Mr Smith must disclose all title deeds for 12 Park Road which are or have been in his control"

or the court/tribunal may identify the documents to be disclosed indirectly by reference to an issue in dispute:

"Mr Smith must disclose all documents which are or have been in his control which support or undermine his contention as to the route of the driveway between 1941 and 1982"    

Complying with an order of the latter type obviously requires more thought (than complying with an order or the first type) because it could involve many types of documents - deeds, photos, letters etc. - and may involve considering 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 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 between 1941 and 1982.  

Almost certainly you will already have obtained a barrister's Opinion on your case and that Opinion will identify some documents which support your case (which you will want to disclose as documents you will be relying on) as well as some documents which tend to point the other way, as an Opinion is an assessment of both the strengths and weaknesses of the case as they appear from the documents which the barrister is asked to consider when writing their Opinion. The court's/tribunal's disclosure order - or the court/tribunal rules - would normally require you to also disclose such adverse documents. So as a byproduct of the barrister's Opinion you will know of some documents which you need to disclose but the identification of all the other documents to be disclosed is something you alone have to undertake. A barrister can tell you if a document is privileged (and so does not need to be disclosed) but if a document is not privileged a barrister cannot tell you that it definitely does not need to be disclosed. This is because - as explained above - a document which seems neither to support nor undermine any party's case may in fact do so when seen in the context of other documents. So only you, who are aware of all the documents, and know what searches you have carried out, are in a position to determine that a document must, or alternatively, need not, be disclosed, and in a position to sign the disclosure statement confirming that you have complied (and will continue to comply) with your disclosure duty.

If you do not feel able to deal with disclosure of documents yourself you can appoint a solicitor to deal with it for you, but a single person, whether you or a solicitor your appoint, has to deal with the whole of disclosure. That single person can draw on Opinions written by a barrister (and documents in the proceedings such as pleadings) to inform themselves of the issues in dispute in the case to help them to carry out disclosure, and a barrister can be asked to advise whether a particular document is privileged (usually there is little doubt whether a document is privileged but occasionally doubts arise and a barrister can be asked to provide an opinion) but the single person has to see out the disclosure process and themselves decide what documents need to be disclosed and sign the appropriate disclosure statement.

If you do decide to engage a solicitor to carry out the disclosure process for you that is likely to be expensive partly because the disclosure process itself can take some time, partly because the solicitor will need to interview you to find out the locations which might need to be searched (you can provide the solicitor with a copy of your computer disk but the solicitor needs some guidance as to where to look and will need to consider with you what other locations may need to be searched), and partly because solicitors are generally reluctant to just carry out disclosure without having ongoing control and conduct of your case - which will entail further costs. In fact if you are going to ask solicitors to carry out disclosure of documents for you it is probably best to instruct solicitors from the outset and not instruct a barrister direct. If you are gong to instruct solicitors to deal with disclosure you should certainly instruct them in good time, preferably at least two months before the deadline for disclosure. 

You may be wondering whether you can ask a barrister to carry out disclosure of documents for you. Regrettably the answer is No. Barristers maintain their skills in advocacy, drafting and giving legal advice by concentrating on those areas, and if they carried disclosure of documents, that would detract from the specialised nature of a barrister's practice, and, as explained above a single person has to be responsible for disclosure - it is not something which can be shared. 

As well as identifying the documents to be disclosed you need to scan them in (if on paper), load them to Caselines DCS, and produce a Disclosure List. Some information pages on disclosure which I provide to my clients can be found here and in the links above. Please note that these pages are designed only to be used by my clients in conjunction with specific advice about the disclosure orders made in their individual case. They should not be relied on by anyone else and the link is provided only so that you can get a general feel of what may be involved at the disclosure of documents stage to help you decide whether you need to engage a solicitor to deal with disclosure of documents for you or whether you are confident that you can do it yourself.

        

Printing and scanning

Although PDFs are increasingly used in legal proceedings, there will always be some documents which need to be printed and sent in paper form, normally because the court/tribunal rules require it. This means that you need to be able to print documents, and to scan in documents which you receive in paper form. Your printer/scanner needs to be capable of printing and scanning in colour because there will invariably be some colour documents such as photographs or colour-coded plans. You can use an ordinary reprographics shop (such as Office Outlet or Rymans) or a specialist legal reprographics shop (such as Legastat) but even if you use a reprographics shop for bulk printing/scanning you will almost certainly need you own printer/scanner at least for low volume use - you do not want to have to go to a reprographics shop just to print a single urgent letter. The cost of "all in one" printer/scanners is coming down all the time and you can buy a combined scanner and printer, which can scan and print double-sided, A4 and A3, for about £100. When buying a scanner make sure that the scanner has a double-sided automatic document feed (ADF) as you may find that many of the documents you need to scan in are printed on both sides. 


Scanner/printer shown above is a Brother MFCJ5625DW  

Email and Word Processing

You will need to be able to carry out the basic range of ordinary office activities including:-
  • Creating and editing a text document using Microsoft Word software
  • Saving a Word document as a PDF
  • Scanning in a multiple paper document as a multiple page PDF - e.g. you need to be able to scan a three page letter into a three page PDF (not into three PDFs)
  • Printing a Word or PDF document with a colour printer
  • Sending an email
  • Receiving an email
  • Saving an email as a PDF

Legal proceedings can last a year or more and at some point during the process you will probably be going away - e.g. on holiday. Whenever you go away for more than two business days you will need to arrange for someone to check your post and scan in, and email to you, anything received about the case so that you can deal with it while you are away. You will probably find that all you need when going away is a tablet or laptop and a mobile phone to “tether” it to as, if you need to print anything, sign it, and scan it back in, you should be able to do that in any hotel you are staying in or at an “internet cafe” (as a last resort if you have no access to a scanner you could use a phone as a scanner). 



Filing formal Documents

In centuries gone by anybody starting a court case, or responding to a court case, had to first attend a short hearing before a judge. At that hearing they would be represented by a barrister to "plead" their case in legal terms - i.e. formally state the legal points that their claim, or defence, was based on, but they themselves had to be physically present as well (albeit in some cases they could send someone with power of attorney in their place) to confirm that they were taking the formal step of starting a claim, or admitting or defending a claim.

These days the formal pre-trial steps in a tribunal or court case, such as initial "pleadings" and declaring the relevant documents which you have, are taken by "filing" formal signed documents at the court/tribunal office rather than by making a physical appearance before a judge, though some of the modern terminology still reflects the former system in that, for example, when a defendant, on receipt of a Claim Form, files an Acknowledgement of Service form, it is still sometimes called "entering an appearance". Because of the importance of the formal steps in litigation (such as starting the case, filing a Defence, or making an Application for an interim court order after the case has started) these steps are required to be done by you personally and there are certain rules about how they have to be done - for example whether you have to use a court/tribunal computer system or whether you can file documents in paper form or send them to the court/tribunal office by email.

The rules about how formal documents have to be filed are designed to reduce the scope for disputes about whether and when a document was filed. A document may have to be filed by a deadline so certainty is important. You can ask your barrister to advise you about the rules which apply and, of course, to draft the formal documents themselves, but you have to do the formal act of delivering (or the online equivalent where applicable) yourself. In the case of delivering formal documents in paper form (where permitted) this does not mean that you have to literally put a formal document through a letterbox with your own hands - you can use the post, for example - but whatever means of delivery you use, you have to initiate it and take responsibility for it.


Visiting the Court/Tribunal Office

In theory you don't have to visit the court or tribunal office to start a claim because you can use post (where permitted) or electronic systems/communication (where permitted) but, even so, you may well still need to visit the court/tribunal office later on in the process to deliver hardcopy files of documents ("bundles") for a specific hearing. In theory this can be done by post but in practice often the timescales and logistics mean that hand delivery to the court/tribunal office is needed. 


Delivering hearing bundles to the court/tribunal office

Bundle is an organised collection of documents in a ring binder or lever arch file (or perhaps several lever arch files if it contains a lot of documents). Every page has a page number and the judge and each party at the hearing have identical copies of the Bundle. A Bundle will have an index at the front, listing every document in the Bundle with its page number.

If you engage a barrister to represent you at a hearing then, depending on the scope of the work the barrister has agreed to do, the barrister may assist you in producing the Bundle in PDF form, but you will need to do the work of printing, assembling and delivering copies of the Bundle to the court/tribunal office, and to the other party, in advance of the hearing.

If you only have a slow printer you could use a high street print shop, such as Office Outlet or Rymans, to print the pages so that you can then assemble the bundles and post them, or hand deliver, or courier if time is short.

If you are too close to the deadline to use the post and your case is in the Royal Courts of Justice in the Strand in central London (or in the nearby Rolls Building or in a tribunal in the vicinity) but you do not live in London and personal delivery or using a courier is not practical, there are shops based near the Royal Courts of Justice who will not only print, but also assemble and deliver bundles to the court/tribunal office. If you use such a service in this way it is important to choose a shop which specialises specifically in producing legal bundles as you will not be able to see and check the hard copy bundle before it is delivered, so you need to be certain that the shop is not just a standard high street print shop but a shop which understands features typically found in legal Bundles such as tabs.


Service of formal Documents

The rules of the particular court/tribunal may require that any document you send to the other party by post has to be sent by First Class post and, of course, there are rules about what is a valid address to send it to, and about how soon you have to send a document, if using post, in order for it to be counted as arriving by any deadline set by the rules. 

The rules about how formal documents have to be served are designed to reduce the scope for disputes about whether and when a document was served. A party receiving a document may be required to take certain steps within a fixed number of days so certainty about service of documents is important.

Because of the importance of these formal pre-trial steps, the other party, and the court/tribunal office, has to send formal documents (and, indeed, all communications) to you personally - not to a barrister you engage to advise you - so your own address is given in the formal documents you send to the court/tribunal and to the other side (or is entered by you after logging in to the court/tribunal system) and you, of course, need to check your post/emails and scan in/forward by email to your barrister, anything received which you require advice on. You will need to check you post and your email every business day. If you will be going away for a period at any time during the litigation (litigation can take up to a year or even more in some cases) you need to make arrangements for someone you trust to check your post and scan in and email to you, wherever you may be, any post relating to the litigation. In many courts/tribunals it is possible for you to give an email address as your address for service but you still have to give a physical postal address as well and both the court/tribunal and other parties are entitled to serve documents on you by sending them to your physical address - they do not have to use your email address. So you do need to ensure that your post is checked at least every other day, and preferably every business day, if you go away. If you cannot do this then you will need to engage a solicitor who will handle all communications for you.     


Keeping Track of Deadlines   

Throughout the proceedings you will need to keep track of the deadlines the court/tribunal has set and ensure that they are met. Where meeting a deadline is dependent on the work of others, e.g. a barrister or an expert witness, you need to ensure that the barrister or expert witness is requested, in good time, to do the work, and is provided with all information and documents necessary for them to do so. So, to take a simple example, a Reply to Defence document cannot be drafted by a barrister until the Defence document is available, so if you are the Claimant in receipt of a Defence document you would need to scan in the Defence document, as soon as you receive it from the other side, so that the barrister can see it, agree the barrister's fee and check that the barrister can draft the Reply to Defence document in time for you to then sign it and deliver/post it to the other party for it to arrive by the deadline, and file it at the court office by the deadline.

When you ask a barrister to draft any document, you have to provide the barrister with the raw material which the barrister is to base it on. This means that you will need to type up, as a Word document, a chronological account of everything you can remember which is, or might be, relevant to the dispute. This is called a "proof of evidence". You will need to look for documentary evidence - i.e. ordinary documents on paper, on computer/tablet/phone which shed light on where the truth lies in the matter in dispute. Depending what the case is about this might include letters, emails, contracts, deeds, Land Registry documents, invoices, bank statements, purchase orders, photographs and videos. In order to find relevant documents you may need to extend your search outside your home or office. For example if the case is about disputed land and it is important to know who was using the land 20 years ago and what for, whether land was cultivated as a garden by an adjoining house, and fenced in, for example, and over what period, you would need to contact aerial photograph companies, search for old maps, make enquiries to see if the people living there (or their relatives who may have visited and remembered playing in the garden) can be traced, etc. 

You will need to decide at what stages to ask for advice


Arranging for Expert Witnesses   

If an expert witness (such as a surveyor) is needed, you have to find a suitable expert and agree their fees. You can ask a barrister to draft an instruction letter but you have to sign it and send it to the expert in your own name, and you have to liaise with the expert to ensure that his report is produced in time for you to deliver it to the other parties by any court/tribunal ordered deadline.



Drawing up plans

In cases concerning land, if a plan needs to be drawn up showing where a piece of land is, or the route taken by a claimed right of way, etc. you would need to draw up the plan. This is usually done by taking a large scale ordnance survey map in PDF form and marking on it, using PDF software, the various features in different colours.

Mediation

Even if court/tribunal proceedings have already started it is not too late for a settlement to be agreed. If the parties can agree on a settlement at any time before (or even during) the trial, the case is essentially halted (although in some cases the court/tribunal may need to make a formal order “by consent”). A settlement can be on any terms which the parties are able to agree on. That might mean agreeing a settlement in which the Claimant gets most (but not all) of what they are seeking, or a settlement which means that the Claimant gets very much less than they are seeking, or the parties might meet roughly in the middle. There are two main ways of attempting to reach a settlement

  • Mediation
  • A formal written offer
A Mediation is a meeting, usually lasting half a day or a day, attended by the parties and their barristers, and conducted by a professional mediator whose fees are split between the parties. You can suggest a mediation to the other side at any time and, if they agree, you can jointly appoint a mediator. 

It is usual for each party to be accompanied to a mediation by their barrister so that the barrister can advise them about making or accepting particular offers during the mediation. Also, if the mediation is successful, the barristers can draft and agree the detailed wording of the formal legal agreement to give effect to the settlement terms which, when signed by both parties, are legally binding. 

A barrister can suggest suitable mediators but barristers do not get involved in making the practical arrangements for the mediation (apart from giving you their unavailability dates so that you can arrange the mediation for a date when your barrister is available) so you have to make the running in corresponding with the other side and with the mediator about dates and the practical arrangements for the mediation.  


Other attempts at settlement 

If the mediation is unsuccessful then nothing which happened at the mediation can be referred to at the trial – it is all “without prejudice”. Because of this, just after an unsuccessful mediation one or both sides may decide to send a written “without prejudice except as to costs” offer (draft by their barrister) which can be seen by the trial judge when the trial judge decides who should pay costs. The main reason for sending a “without prejudice except as to costs” offer (often in the form of a Part 36 Offer in court proceedings) is costs protection (in most cases – not all – the general rule is that the loser is ordered to pay the winner’s costs but it is different if the winner wins only partly and does less well than a “without prejudice except as to costs” offer made by the other side) albeit sometimes the offer is accepted bringing the case to an end. A “without prejudice except as to costs” offer can be made at any time, whether or not there has been a mediation, but it is rare for there to be more than one or two such offers a case, and mediation is the primary means of actually reaching a settlement. Sometimes clients decide that, instead of mediation, they will negotiate one-to-one in person, by email or by phone - such negotiations being “without prejudice and subject to contract” – with a view to reaching agreement in principle which can then be embodied in a “without prejudice except as to costs” offer (drafted by a barrister) which, when formally accepted, is binding. Such one-to-one negotiations are not necessarily a good idea because they have a statistically low success rate and unfortunately often result in parties being put off the idea of mediation (which has a high success rate), but the point to bear in mind, when considering whether you will be able to do the administrative work necessary when engaging a barrister directly (or whether you should use a solicitor) is that a barrister will not provide you with advice about such one-to-one negotiations (apart from very general advice about how to ensure that any such negotiations you conduct are “without prejudice and subject to contract”). The barrister only gets involved if and when you ask them to draft a “without prejudice except as to costs” offer specifying the terms you want to formally offer (or if a formal offer drafted by the other side’s lawyer is received which you want advice on). 

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.
        

This page was lasted updated in November 2017          Disclaimer