Agreeing the authenticity of documents and using metadata prints, and/or transcripts

What is "Authenticity"?

The question of whether a document is authentic (genuine) is distinct from the question of whether what the document says is accurate. For example, say the other side in litigation had disclosed a copy of letter written to you at some time in the past, which contains a complaint that you had caused an obstruction by parking your car in a particular place at a particular time on a particular date. If you received the letter at the time but you dispute the accuracy of what it says, the letter is still authentic – i.e. it is a genuine copy of a letter actually written on the date it bears by the person whose name appears in the signature and sent out the same day or shortly after. If, however, you think that the letter is a fabrication – that it is not a genuine copy of a letter written at the time because, say, you didn’t receive it at the time and it gives as your address an address which you didn’t move to until three years after the date the letter was supposed to have been written - that would be an example of a document which is not authentic. It is not uncommon for parties to dispute the accuracy of what historical documents say but relatively unusual for the authenticity of a document to be challenged.

Tribunal procedure where authenticity is not admitted

Traditionally the courts had very strict rules about what documents could be admissible as evidence at the final hearing and documents had to be  formally proved to be authentic by being "produced" at the hearing by a witness who could say what the document was and where it had come from. But the general approach now, in both civil courts and other civil tribunals, is that documents disclosed by either party in advance of the final hearing in accordance with the tribunal's directions are normally assumed to be authentic unless the other side specifically challenges the authenticity of a particular document when disclosed.

Tribunals have a certain discretion to permit a late challenge to the authenticity of a document - after all it is conceivable that the likelihood that a document is inauthentic might only become apparent as a result of evidence given by witnesses in cross-examination at the final hearing. But generally the tribunal expects challenges to the authenticity of disclosed documents to be made in good time before the Final Hearing Bundle is finalised so that each party at the start of the hearing knows what is and is not in dispute and so has an opportunity to prepare for the hearing on that basis. Tribunals do not want to allow a party to be unfairly taken by surprise by another party alleging for the first time at the final hearing, or for the first time not long before the final hearing, that a document disclosed by the party is not authentic. 

Before the invention of the photocopier the rules of the High Court required the parties initially to exchange just a list of relevant documents in their possession or control and the other party (in practice the other party's solicitor) then had the right to physically inspect the documents listed by the other side at the other side's premises (in practice the other side's solicitors' premises) by appointment. They (or in practice a copyist employed by them) could then make a manuscript  copy. Alternatively the rules, in the interests of efficiency, allowed a party to request that the other side provide copies of all or selected documents and the other party had to comply if the requesting party agreed to pay the cost of copying. A party could still make a physical inspection of a document but would generally only do that if there was reason to doubt its authenticity (or perhaps if part of a crucial document was faded and difficult for the copyist to decipher). There was a specific deadline by which a party may inspect the original document by appointment with the other side and then a later deadline  by which they must give formal notice if they did not accept the authenticity of a document disclosed and required it to be formally "proved" by a witness at the final hearing - otherwise they were presumed to admit authenticity.

Nowadays, of course, copies of documents are typically provided as computer files but in the High Court, and usually also in the County Court, there is still the right to physically inspect documents at the disclosure of documents stage and a formal deadline to give notice that the authenticity of a particular document is not admitted.  

In specialist tribunals there may be no automatic right to physically inspect documents at the disclosure of documents stage, and no specific deadline to give notice that the authenticity of a particular document is not admitted. But nevertheless a party which has a specific reason to suspect that a document disclosed by the other side is not authentic is generally expected to raise the matter well before the final hearing. Even if a tribunal, when giving directions for disclosure of documents, has given a standard direction that the parties must bring the originals to the final hearing, if a party has a specific reason to suspect that a particular document copy disclosed by the other side is not authentic then they are normally expected to raise that in advance of the final hearing - indeed preferably in advance of the exchange of witness statements stage - by, for example, asking the other side in writing to voluntarily allow them to inspect the original paper document, or in the case of an electronic document asking them to supply a native copy if one has not already been provided. Once the original document has been inspected/a native copy obtained, a final decision can be taken by the party whether to accept the document disclosed by the other side as authentic or whether to formally state, in good time, that its authenticity is not accepted and that if the other side wishes to use the document at the final hearing it will need to be formally "proved" at the hearing by a witness. In fact, because time is often limited, it is common for the first letter written in such circumstances to state that authenticity is not accepted but that once the original is examined/native copy sent, the matter will be reconsidered, as in this example:

"You have disclosed a letter dated 23 May 2021 addressed to me. I did not receive this letter at the time and, whilst things can occasionally go astray in the post, I note that the letter indicates that it was also sent to me by email but I did not receive an email copy either. It would be a remarkable co-incidence if a letter was actually sent by post and email but both failed to arrive. So far you have only disclosed a PDF scan on the letter and I would ask you to send me, within the next 7 days, a native copy of the email which you purport to have sent. I will finally consider my position when you have sent me the native-copy email but, for the moment, I am giving you notice that I do not accept the authenticity of the letter dated 23 May 2021 which you have disclosed."    

Sometimes although the authenticity of a document is not itself challenged there may be a challenge to the date that the document was made - it may be suggested that it was accidentally misdated - or there might be a challenge to the date and/or authorship of some annotation on it.  Or it may be that the document does not itself bear a date but the other side has given a date or a year on the disclosure list and that is disputed. It might be appropriate to write like this:

"You have disclosed a PDF copy of a photo which, you state on the disclosure list, was taken in June 2018. However I do not believe this photo was taken in 2018 because...   It may be that it is a photo taken after 2020 but I do not believe it to be an authentic photo taken in 2018. If it was taken in the last 15 years then it is likely to have been taken by a camera or phone which recorded the date taken as metadata and I would ask you to send me, within the next 7 days, a native copy so that I can check the metadata. I will finally consider my position when you have sent me the native copy but, for the moment, I am giving you notice that I do not accept the authenticity of the photo in the sense that I do not accept that it is a genuine photo taken in June 2018 as you are claiming." 

In the above sample letters the other side is asked to take steps to demonstrate the authenticity of a document - e.g. by allowing inspection of a paper original or providing a native copy of an electronic document. If they fail to do so one option is to make an application for directions to the tribunal asking the tribunal to order the other side to allow inspection of the paper original or to provide a native copy (or perhaps even an order that they supply the original device to a tribunal-approved independent expert for examination). Such an application for directions might be appropriate if the document concerned in crucial - for example if it is likely to play such a pivotal part in the overall outcome of the case that resolving the question of whether it is authentic or not might mean that one side or the other concedes the case so that the time and expense of a final hearing is saved. Usually, however, the outcome of a case depends on a number of items of evidence and on legal argument and in that case it may be decided not to incur the extra expense of applying to the tribunal for directions but instead simply accept the inclusion of the document in the eventual Final Hearing Bundle (if the other side requires its inclusion) but in such as way that it is clear at the final hearing that if the other side wish to rely on that particular document they will have to prove its authenticity at the final hearing. It is useful if the letter sent is actually in letter format (perhaps sent by email as an attachment but not actually sent as email text) dealing only with the single question of the authenticity of the particular document, so that when it is included in the Final Hearing Bundle the issue is highlighted clearly and concisely. The words **authenticity not admitted** should be added to the description of the document in the bundle index and bookmarks or, if it is just the claimed date of the document which is disputed, **date not admitted**. 

Using metadata-and-image prints of photos

If you want to rely on the date of a particular JPG of HEIC photo you can ask the other side to agree the date in writing, and normally the other side will display and check on their computer the metadata of the JPG/HEIC which you sent them at the disclosure of documents stage and agree the date in writing, and their signed letter agreeing the date can be included in the Final Hearing Bundle. If they refuse or fail to do this you could make a a PDF "print" of the image with accompanying metadata and send that to them saying that the print is to be included in the Final Hearing Bundle. If you think your opponent is likely to play games by agreeing something and then trying to renege from their agreement at the Final Hearing (or if you think they are just unclear about tribunal procedure and may not really realise what they are agreeing to and might renege because of a genuine misunderstanding) then to be on the safe side you might want to produce image-and-metadata PDF prints anyway, at least for crucial photos, for inclusion in the Final Hearing Bundle.

It is possible that you might want to produce an image-and-metadata PDF print of a JPG or HEIC photo disclosed to you by the other side. If you have not been sent the JPG/HEIC image itself but only a paper or PDF copy you may want to ask the other side to send you the JPG/HEIC file so that you can  look at the metadata and decide whether to create an image-and-metadata PDF print and send it to the other side. You might want to do this if the photo significantly helps your case. You might also want to do this if the photo potentially harms your case but the metadata proves that it was not taken when the other side claims it was - or if the metadata is incomplete casting doubt on its reliability. In a situation like this you need to ensure that words are included in the bundle index and bookmarks making clear that it is you who have produced the image-and-metadata print but it has been produced from a JPG/HEIC disclosed by the other side.

Tribunals do not want to allow a party to be unfairly taken by surprise by another party producing things at the last minute and so far as possible any PDF image-and-metadata PDF print should be produced and sent before the deadline for disclosure of documents (or as soon as possible thereafter) notwithstanding that the PDF print simply shows, in a convenient form, data from the already disclosed JPG/HEIC file.  

Using metadata prints of video files and using snapshots

The same principles apply to metadata prints of video files. A metadata print-to-file can be produced using this procedure to be sent to the other side preferably before the deadline for disclosure of documents or as soon as possible thereafter.

It is normally possible for arrangements to be made for specific video files to be played at the final hearing but this can be time consuming and so tribunals generally prefer it if the point which a party is seeking to make from a video file can be made mainly - or preferably solely - by reference to static documents which can actually be included in the Final Hearing Bundle along with the metadata print. 

If the current state of land or of some object (such as a piece of machinery) is relevant then it is usually better if a series of photos can be taken rather than take a video. If evidence of the past state of land or some object is relevant then the parties are limited to what photos and/or videos were taken at the relevant time in the past. If there are historical photos which demonstrate all necessary details at the relevant date in the past then a party will not need to rely on videos taken at the same time as well. (A video file will still need to be disclosed if relevant if the tribunal has ordered all relevant document to be disclosed, but it may be that neither party will need to use it at the hearing.)  

If, however, an important detail is shown on a historical video, and no suitable photo of the same detail taken at the time is available, then one or more snapshots can be taken of the relevant frames in the video, and those static snapshots can be included in the Final Hearing Bundle. Different tribunals have different specific rules but the general approach is that a party which intends to rely on particular frames of a video is expected to make that clear in advance by doing more than simply sending a native copy of the video file to the other side at the disclosure of documents stage. Generally they are expected to take the relevant snapshots from the video and send those to the other side, along with the video at the Disclosure of Documents stage, or separately not too long afterwards, so that the other party has the opportunity to check that they are from the disclosed video and that they do not, by unfair selection, misrepresent what the full video shows, hopefully avoiding the need for the video itself to actually be played at the final hearing. 

When making snapshots of key frames in a video, do so in such a way that the the snapshot image contains the number of minutes and seconds into the video that the snapshot is taken, and that the snapshot image includes the filename of the video, as shown in the example below.

If the video is a recording of a meeting and it is actually the audio track which is relevant then minutes or a transcript may be needed - see below.

Using metadata prints of audio files and/or using minutes/transcript

It is normally possible for arrangements to be made for specific audio files to be played at the final hearing but this can be time consuming and so tribunals generally prefer it if the point which a party is seeking to make from an audio file can be made mainly - or preferably solely - by reference to static documents which can actually be included in the Final Hearing Bundle. 

If a business meeting was recorded and minutes were then produced at the time, and both parties are able to agree that the minutes are a fair reflection  of what was said and decided at the meeting, then those minutes can be included in the Final Hearing Bundle and a party may then not need to rely on the audio recording.  (The audio file will still need to be disclosed if relevant if the tribunal has ordered all relevant document to be disclosed, but it may be that neither party will need to use it at the final hearing.)  

If no minutes were produced at the time (or if they were but a party maintains that they are inaccurate and/or do not record certain important matters) then a transcript of the audio recording can be made to be included in the Final Hearing Bundle.  

It is desirable that the wording of any transcript to be made is agreed between the parties. If the transcript is not agreed before the final hearing and it becomes necessary to play the audio file because there is a dispute over the transcript then that reduces the value of using a transcript. 

Making a transcript of a lengthy recording can take a considerable amount of time and generally it is only necessary to transcribe the relevant parts. Sometimes the whole of the recording is relevant but if, for example, there is a conversation between people on friendly terms they may break off from talking "business" (e.g. a discussion of a business transaction which is now in dispute) to discuss social matters irrelevant to what the current dispute is about. In this case you should be able to agree with the other side that the transcript can simply summarise in a few words the irrelevant conversation (e.g. “general conversation about the how the English cricket team is doing”) and only set out verbatim the relevant conversation.   

Because of the need to try to agree the transcript, and because whether or not a transcript is needed may be depend on what documents the other side discloses, a party intending to rely on an audio recording is (depending on the rules and directions of the specific tribunal) not necessarily expected to have a transcript ready at the Disclosure of Documents stage  when they disclose the audio file itself but they should, if they then decide that they wish to rely on an audio recording, start the process of producing and trying to agree the transcript as soon as possible  after the Disclosure of Documents stage.

If there are no agreed minutes (or if the agreed minutes are, for some reason, undated) and the parties cannot agree the date of the meeting, a metadata print-to-file can be produced using this procedure to be sent to the other side and to be included in the Final Hearing Bundle.

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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.

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This page was lasted updated in June 2025. Disclaimer.