Disclosure - Why Recent Consistent Statements are not generally Significant

The litigation process itself may generate a lot of correspondence, and it is usual for there to be “pre-action” correspondence – i.e. correspondence, in the months before a formal court/tribunal claim is issued, in which the claimant/applicant outlines its case to try to persuade the other side to deal with the matter so as to avoid court/tribunal action, and in which the defendant/respondent may try to argue that the claimant has a weak case with a view to trying to persuade the claimant not to risk starting a court/tribunal case. It is not uncommon for this pre-action correspondence, and litigation correspondence following commencement of litigation (often called inter partes correspondence), to consist of  more documents – i.e. letters and emails - than all the other documents put together. However, as explained below, it is important to appreciate that the vast majority of pre-action correspondence and litigation correspondence is unlikely to be significant in terms of proving a party's case at trial.

Recent correspondence about past events

Suppose, in a case, one of the issues in dispute is whether a completion date of 1st November 2013 was agreed for the completion of building work. The Claimant’s pleadings may allege that this was agreed, by word of mouth, on a particular occasion in 2013. The Defendant's pleadings may deny this. At trial the Claimant will confirm on oath his recollection about the conversation in 2013 and the judge will decide, having seen him and other witnesses give evidence and being questioned, and having considered the documents in the trial bundle, which party is most likely to be correct. Now it may be that the Claimant, during the litigation process and/or pre-action correspondence, has written letters/emails (and/or produced tables or diagrams) in which they state their recollection that a date of 1st November 2013 was agreed at the outset, but those recent letters etc., though technically probative - because any previous consistent statement can be received as evidence with permission of the court/tribunal under s.6 of the Civil Evidence Act 1995, and the court's/tribunal's decision cannot be pre-judged at the Disclosure of Documents stage - will not, in practice, add anything significant. Even if the Claimant has written 100 letters, during the litigation process, saying that a date of 1st November 2013 was discussed and agreed in 2013, those 100 letters, in themselves, add nothing – the Claimant’s evidence on oath at trial as to what his recollection is, will be evaluated by the judge, but 100 recent letters from him, repeating what his recollection is, cannot add any extra probative weight and the court/tribunal is very unlikely to give permission for them to be relied on. 

When it comes to letters and emails (and other historical documents) written at some time in the past, the position is different. They may add probative weight. If the Claimant wrote a letter, or sent an email, in 2013 shortly after the conversation, referring to a completion date of 1st November 2013 then the existence of the letter/email, written when the memory of the conversation was still fresh, tends to show that the date of 1st November 2013 was indeed agreed. If the Claimant still remembers they can give evidence of that on oath too, but if not the letter/email from the past provides evidence. But once litigation is contemplated, or has started, the battle lines are drawn and any letters written then, some time later, simply repeating the party's recollection about past events set out, or to be set out, in its formal litigation documents, do not add any extra probative weight to the party's evidence on oath.

The principle that recent correspondence from a party about events long past is unlikely to add any probative weight to that party's evidence applies where the correspondence simply echos what a party is saying in its formal documents in the litigation (in the pleadings and, subsequently, in a witness statement). However in the unlikely event that a party says, in recent correspondence, something about past events which is inconsistent with what that party is saying in its formal documents in the litigation, that would be significant. For example, if, in that party’s pleadings, the party says that a completion date of 1st November 2013 was agreed, but in a recent letter or recently composed email, table or diagram they say that a completion date of 31st December was agreed, that recent letter etc. would be significant. The reason for this is that you expect a party to litigation to say, in letters during the litigation, things consistent with their formal case. Such letters prove nothing. But if a party says something which is inconsistent with their case (and is not just an obvious typo) that tends to indicate that at best their memory of past events is unclear and, all other things being equal, casts doubt on what they are saying in their formal litigation documents.

So, to summarise: documents, such as letters and emails, written in the past, which tend to support what a party says in its formal litigation documents about past events, are significant. Equally past documents which tend to cast doubt on what a party says in its formal litigation documents about past events, are significant. Letters, emails, tables etc. recently composed by a party (or their solicitor if they have appointed a solicitor) during pre-action correspondence, or during litigation itself, which are inconsistent with what that party says in its formal litigation documents are significant. However recent letters/emails/tables etc. composed by a party (or their solicitor) during pre-action correspondence, or during litigation itself, which simply echo what that party says in its formal litigation documents about events long past are not likely to be significant.

Note: although recent letters/emails about events long past are themselves not normally significant, those letters/emails might enclose past letters, emails, or other documents which might be significant.  

Recent correspondence about recent events

In most litigation all of the disputed issues are about events which happened in the past. However sometimes a disputed issue will "spill over" into the present. For example if it is claimed that a builder has carried out poor quality work and, as a result, a property could not be rented out until the defect had been remedied by another contractor, the customer may be claiming for loss of rent between the time when the work should have been completed and when the remedial work was completed (as well as, of course, the cost of the remedial work). Any recent letters/emails about the poor quality work carried out in the past would simply be assertions based on the writer's recollection of past events (and so, as explained above, add nothing to their evidence on oath). However if, for some reason (e.g. lack of funds) the remedial work is yet to be carried out, so that there is a continuing loss of rent, some recent letter/emails may be referring to the current (or very recent) situation, such as the rents of similar properties as evidence of the present state of the rental market, recent unsuccessful attempts to raise money for remedial work to be carried out, etc. Such letters/emails, even though recent, would be significant because they are referring not just to events long past but to relevant recent events/situations.   

Occasionally a party will, in a recent letter or email, communicate a decision they are making - for example they may say that they are exercising an option which they have under a contract, or they may be giving notice to quit, "rejecting" goods delivered which do not conform with the contract of sale, severing a joint tenancy, or terminating a contract. Or they may be offering to do something practical to ameliorate a problem. Or they may make a legal admission, such as acknowledging that another party has good title to land.  Again such communications would (if relevant to the matter in dispute) be significant, even though recent, because they go beyond simply making factual assertions about past events.    

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 on whether future continuation is threatened or likely and some correspondence may help to establish a party's intentions and help to show why an injunction is needed or, alternatively, why it is unnecessary.

Correspondence which shows a party behaving unreasonably in the conduct of the litigation process itself 

Courts and tribunals expect the parties to conduct the litigation, including any pre-action correspondence (correspondence immediately preceeding the formal commencement of litigation) in a reasonable and proportionate way by, for example, making clear the substance of their allegations or defence at the appropriate stage. And whilst there are obviously disputed matters of fact and/or law which the court will have to adjudicate on in due course - the parties are, after all, adversaries - the court/tribunal does expect the parties to co-operate in practical matters in the litigation itself such as arrangements for experts to make site visits, providing legible copies of documents, not wasting time on pointless procedural wrangles, etc. If your opponent is not conducting the litigation reasonably you may feel that this ought to be brought to the court's/tribunal's attention but it is important to keep in mind the difference between

(a) correspondence which is relevant to the trial judge's eventual decision on who wins the case and how much compensation (or what other remedy) is granted, and 

(b) correspondence which is relevant only to how reasonably a party has conducted the litigation itself - and so may affect costs orders but not affect the decision as to who wins how much.         

One reason why it is important to distinguish between (a) and (b) is that because a letter or email has to be seen in context of the overall chain of correspondence on a subject, the number of documents in category (b) needed to show that a party has behaved unreasonably on various matters in the litigation can easily outnumber the documents in (a) but a judge trying a case will not want to get bogged down by large numbers of category (b) documents in the trial bundle. Documents in category (b) only become relevant at the stage when costs orders are being considered (which may be immediately after the judge decides who wins but is essentially a separate step at which additional documents can be considered). Therefore, when adding individual documents to Caselines for e.g. a trial bundle, it is only category (a) documents which are included or, at least, if category (b) documents are to be included also they should normally be in a separate volume.

In most instances it is easy to distinguish between category (a) documents and category (b) documents. For example in category (b) would be correspondence showing that, at the disclosure of documents stage, it took many emails/letters from you before the other side provided you with a complete, legible, colour copy of one of their documents. Only the document they eventually provided (and not the correspondence necessary to extract it) would be in category (a).    

However there are some types of case where the court or tribunal has a discretion as to what remedy to grant - for example if the other party is found to have constructed a building in breach of a restrictive covenant, the court will grant some remedy, but the court has a discretion as to what remedy - whether to grant an injunction requiring it to be demolished, or whether to award a sum of money as compensation to the party entitled to be benefit of the covenant, instead. In such cases the dividing line between documents in category (a) and some documents in category (b) may not be quite so clear cut. For example, normally a failure by a party to set out its complaint clearly in pre-action correspondence is a matter which can affect costs (category - (b)) but not the overall result of the case. However it is possible to imagine cases where a party is so dilatory in setting out the legal basis of its complaint in pre-action correspondence that it takes many months of correspondence to extract basic details. If, during the course of those months, the building progresses from laying foundations to completed building, the tardiness of the complaining party may affect the court's decision as to whether to order demolition or whether to award compensation instead, so that the correspondence then falls within category (a) - i.e. it is not only relevant to costs but may be a factor in the judge deciding that a party seeking demolition does not win completely - i.e. is awarded compensation only. It should, however, still be possible to treat the majority of inter partes correspondence as category (b) and only include the run of correspondence which could realistically affect the judge's decision on who wins as category (a).            


The above explanation of the law as it relates to disclosure of documents is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice.
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 2016. Disclaimer