Keeping Track of Where Documents Have Come From

When there is a problem which becomes a legal dispute, the civil court or other tribunal, if matters get that far, will decide the dispute based on the evidence. One category of evidence is the evidence of witnesses who tell the tribunal what they remember. There is also documentary evidence which includes things such as emails, letters and photos as well as formal documents like deeds and contracts.

It is important to keep track of where the documents you have came from. There are three main reason for this. First, there is the question of provenance.  If you made a handwritten note of some event which you saw with your own eyes, at the time, and have kept it, unaltered, ever since, for example, that is rather different from some note produced years after the event by someone else. 

Secondly,  in some legal proceedings, the relevant issues to be determined by the tribunal include not only what actually happened in the past but what you (or the other party) knew (or should have known) or what you believed, at particular points in time in the past. Because of this when a document first came into your hands can be important. Is it a document you have had for some time or did you obtain it (or was it sent to you) recently?

Thirdly there is the question of the date a document was created. If you obtain an official copy of a document filed in an official public register such as Companies House or the Land Registry, you know that the document which it is a copy of must have been created on a date not later than the date of filing, which is some confirmation of any date which the document itself may bear.


Examples of what NOT to do

What NOT to do - EXAMPLE 1

15 years ago you bought a house. You have kept the estate agents details, and letters and documents which your conveyancing solicitor sent you at the time, in a cardboard file. The house is an old house and the people you bought the house from also gave you, at the time, some old maps, plans and documents which were of historical interest, and you put these in the same cardboard file. Three weeks ago a query, which turned into a dispute, arose with your neighbour who claimed that part of what you had always thought of as your garden was in fact part of their registered title. During discussions with them, they gave you copies of some old documents and you filed them away in the same cardboard file. You then started to do your own research, getting historical documents from the Land Registry and other public sources, and from other neighbours, which you also stored in the same same cardboard file. A week later your neighbour's solicitors wrote to you about the dispute enclosing copies of historical documents, and you filed their letter in the cardboard file. You also filed the documents enclosed with their letter separately in the cardboard file. A month later, thinking about the dispute, you decided to go through the cardboard file and sort everything into chronological order.

Formal legal proceedings have now been started and it turns out that one of the issues in the case is whether you believed (at least until recently) that you owned the disputed land and whether, if you did, your belief was a reasonable belief in the circumstances at the time. Because it is now clear that what documents you saw when you bought the house are important - because relevant to your belief and the reasonableness of it - you look through the cardboard file to find the documents you were given when you bought the house. But you can't work out which they were. You pick up a conveyance and ask yourself: was that one of the documents you were given originally or did you obtain that from your recent research, or was it one of the documents which your neighbours' solicitor sent you recently, or a copy your neighbours gave you when you met them recently? 


What NOT to do - EXAMPLE 2

You have been buying services from a supplier for over 10 years and you have a file for that supplier. It contains letters, brochures, purchase orders, invoices, statements, agreements, and a number of versions of the supplier's term and conditions. About 6 months ago a dispute arose about the quality of the services provided in the past and you have been withholding payment. You tried, unsuccessfully, to come to some resolution by phone, and you have now received a letter from the supplier setting out their position. Enclosed with that letter are a number of documents. You reply to the letter and put your reply, together with their letter, and separately the documents enclosed with it, in the file. Eventually you get a letter from the supplier's solicitor also enclosing some documents. Again you reply to the letter and put everything in the file for the supplier. A month later, thinking about the dispute, you decide to go through the file, sorting everything into chronological order.

Legal proceedings have now been started and it turns out that one of the issues in the case is whether you had received version 11.6 of the supplier's terms and conditions (dated 10th April 2020) before you sent a purchase order to them on 1st August 2020. You look through the file for the supplier and there is a single copy of the version 11.6 terms and conditions there but when did you receive it? Has it been in the file for a while or was it one of the documents sent to you recently by the supplier or by their solicitor? 

The Solution - How to handle documents correctly when received

Every time you obtain or receive documents you should store them in a way which records where they came from and when you received/obtained them:-

Of course you may not have done the above in the past - because you were not aware that a legal dispute might arise - but from now on, for new documents received, you should deal with them as explained above. You should also take care to preserve existing documents which may be relevant.

Loading documents to a document management system if there may be legal proceedings

As part of legal proceedings (if proceedings are actually commenced) at various stages the parties will be disclosing copies of relevant documents which they possess (or which are under their control), and in preparation for disclosure you will be loading documents you have to a document management system such as  Bundledocs. When doing this it is important to be clear about which documents you already had before legal proceedings were intimated, and which documents you have now but only because the other side has sent them to you recently because of the legal proceedings (e.g. pursuant to a tribunal direction for disclosure, or enclosed with a "letter before action" or similar).

Loading documents - Document Date

When you load a document you specify a Document Date as in this example using the Bundledocs system:

with the Document Date being the date the document was created/signed (or taken in the case of a photo). 

Where the date you received a document is significantly later than the date it was created/signed, it can sometimes - not always but sometimes - be important to add, in brackets at the end of the Document Description, the date that you received the document (the exact date if you know it or otherwise the approximate date as best you can remember it) as shown below. 

The date you received/obtained a document might be important if, for example, you thought for a long time that you owned land but as a result of seeing the document you started to wonder, or if someone told you something and you only discovered otherwise when later you saw the document, or you made an agreement with someone and you only received their standard terms and conditions - or some document referred to in the agreement - after you had made the agreement. 

Normally a Document Description does not include the date the document was created/signed (because there is a separate Document Date field which gives this information) but if you are including in the Document Description the date that you received the document you should always also include the date the document was created/signed in the Document Description as well.

Loading Documents - identifying which party is bringing a document to the proceedings

In legal proceedings it is important to be able to identify which party has disclosed each document. If you are using Bundledocs as your document management system you should, if legal proceedings have already commenced when you come to load a document to Bundledocs, type [A], [ C], [D], or [R] in the Custom Text column to indicate whether it is a document which you have disclosed (or will be disclosing at the appropriate time) or whether it is a document copy disclosed to you by the other side.  A stands for Applicant, C for Claimant, D for Defendant, and R for Respondent.

Note that when deciding whether to enter A or R etc. for a document you are loading the question is which party is bringing the document to the proceedings rather than who originally created the document. For example, say you are the Applicant. If the other side sent you a letter three years ago complaining about your parking, and you kept that letter, you would enter A when loading that letter to Bundledocs. If the other side - the Respondent - kept a copy of that letter and also kept a copy of your reply and have now sent both to you as part of disclosure in the legal proceedings (either after formal legal proceedings have started or perhaps just before with a "letter before action" or similar) you would enter R for both when loading them to Bundledocs.   

Although it depends, to a certain extent, on the type of legal proceedings, it is usual for parties to disclose documents at the following stages of litigation before the final hearing:-

1. During the pre-action correspondence phase (generally disclosure of documents in this phase, before formal legal proceedings have actually commenced, is voluntary rather than being ordered by the tribunal) or as part of a Land Registry application. 

2. At the initial Statements of Case stage

3. At the main Disclosure of Documents stage

4. Late disclosure - occasionally a disclosable document only comes into a party's hands after the main Disclosure of Documents stage so they disclose it immediately they receive it

If you are loading a document before legal proceedings have commenced - i.e. at 1 -  type an abbreviation for the name of the party which has voluntarily disclosed the document - e.g. S for Mr Smith - instead of [A], [ C], [D], or [R] .  Then, as soon as proceedings are commenced and it is known which party is the Applicant and which is Respondent etc., you can replace the party name with [A], [ C], [D], or [R] etc.

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 will not be applicable to every case: it is intended to be used only in conjunction with more 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 April 2024. Disclaimer