Disclosure of Documents in civil proceedings

Introduction to Disclosure of Documents

For the final hearing, at the end of the case, a Final Hearing Bundle will be produced containing all the documents which the parties wish the tribunal to consider. In order to ensure fairness to both parties the tribunal will order the parties, at an earlier stage of the litigation, to send each other copies of documents which they will or might be using at the final hearing. The parties do not have to eventually include in the eBundle, and use at the final hearing, every document disclosed. A party might decide not to use some disclosed documents after all (so that they would only be included if the other side wished them to be). But normally you cannot use at the final hearing any document in your possession which has not been disclosed on time - at least not without special permission from the tribunal.

You have to disclose:

1. the documents you will (or may) rely on at the final hearing, and

2. the tribunal will usually also order each party to disclose all other documents in its possession or control which have a bearing on the case (whether or not the party intends to rely on them) - so that the other party can use them if they wish. 

You don't have to list 1 and 2 separately - you just provide one list containing all the documents in 1 and 2.

It might be thought that the set of documents in 1 would be the same as the set of documents in 2, and it is true that there may well be a large overlap but you have to keep both 1 and 2 in mind because, for example:-

• There might be a document which, although it is not directly relevant to the issues in dispute, is relevant to the background or context of material facts or events. Whilst such a document does may not come under (2), it might nevertheless be useful to help  the judge and others at the final hearing "get their bearings". For example there might be a Google Earth satellite image which, because of tree cover, does not shed any light on whether or not a particular structure in dispute existed on the ground at the date of the image, but the image might nevertheless be useful to give everyone an appreciation of the general layout of the land, so you might decide to provide a copy of it under (1).       

• You might not need to use every document which supports your case.  If you took a number of photos in the past withing a few minutes of each other you might decide you only need to rely on some of them under (1). Generally speaking a tribunal will only order you to disclose those documents which support your case if you intend to rely on them. However you should double-check the wording of the tribunal's order carefully. If, for example, the tribunal orders each party to provide 

A list of all relevant documents in that party's possession or control which that party intends to rely on in the proceedings; or adversely affects that party’s own case; or adversely affects another party’s case or supports another party’s case

at first sight that might seem to say that you only have to disclose documents which support your opponent's case or which undermine your own case or undermine the case of another party (where there happen to be more than two parties) plus those documents you yourself intend to rely on, but it could be argued that every document which supports your case (or at least most of them) is also a document which "adversely affects another party’s case" so that arguably you do have to disclose (under 2) every (non-privileged) document which supports your case even if you don't intend to rely on it. If the tribunal's order is open to interpretation you could apply to the tribunal for clarification but that takes time (and there might be a costs penalty if the tribunal rules that the application was unnecessary) and unless there are a very large number of documents involved, or they are paper documents which are particularly difficult to scan in, the simplest solution is to "play safe" and disclose every document in your possession or control which is relevant even those documents which support your case which you don't intend to use yourself. This may actually be easier in any event because then you only have to decide whether each document has some bearing on the case - not which side's case it tends to support.

• If a document is privileged you do not have to provide a copy of it under (2) but you might choose to provide a copy of it under (1) - in which case by being disclosed it ceases to be privileged. For example you might have taken some photos after litigation was intimated, which are privileged, but you might decide to waive privilege and disclose some of them so that you can use them at the final hearing.

• Under (2) the tribunal will only order you to disclose documents which are in your possession or control. The reason why the order probably says “possession or control” is to make clear that it is not just relevant documents on a party’s own computer which are covered but also documents which a party has in cloud storage, and not only physical papers a client has in their own filing cabinet but also papers they have deposited with their accountant. Publicly available documents held by an public body such as a Register of Title document held by H.M. Land Registry (or documents held by a commercial body offering services to the public such as Google Earth satellite images) are not considered to be under your “control” just because, like anyone else, you could obtain copies of them if you wanted to. But if you do choose to obtain copies of documents by having them posted to you, or downloading them to your computer or cloud storage or into the personal storage area of an account you have set up with the public body, then those copies are then under your control. 

• Although you will not be ordered to carry out searches for documents in public registers, you might have decided to do so anyway, looking for documents which might help your case (or asking independent individuals if they have documents). If you do this you should carry out these searches before the deadline for disclosure. If you delay and then ask the tribunal for permission to use at the final hearing extra documents obtained after the deadline the tribunal may refuse permission on the ground that you should have obtained them earlier (of course if it is the other side which produces a document after the deadline, for example if they write a letter to you, and it is you who want to rely on that, the tribunal may well allow that.)   

Note that a "document" is anything in which information of any description is recorded so letters, emails, instant messages, photos, and plans are all documents. Even an audio or video recording - e.g. an MP3 or MP4 file - counts as a document.

Although the tribunal's order may not be explicit about this, it is generally understood that you don't have to disclose again documents you have already provided to the other side at the earlier statements of case stage. And obviously the copy documents provided by the other side at the statements of case stage are their documents so although those copies are now in your possession, you don't send them back to the other side!    

You should never (except under very unusual circumstances) send the other side a copy of any legal advice you have received (or any correspondence with a barrister or solicitor - unless transaction correspondence some of which may not be privileged). You do not have to provide a copy because it is legally privileged and you should not waive privilege and provide a copy because a legal Opinion is a “warts and all” assessment of the strengths and weaknesses of your case and providing it to the other side would give them an unfair tactical advantage.

At the Exchange of Witness Statements stage each party will exchange with the other party witness statements taken from that party and from their witnesses who are to give evidence at the final hearing. If, as is usual, the deadline for the Exchange of Witness Statements stage is after the deadline for the general Disclosure of Documents stage, you should make sure that you do not, when disclosing documents, accidentally disclose prematurely witness statements which you are due to exchange later on. But bear in mind that

• Generally if a witness statement refers to documents then those documents should be disclosed at the Disclosure of Documents stage. It is only the witness statement itself whose sending is delayed until the Exchange of Witness Statements stage. When a witness statement is sent at the Exchange of Witness Statements stage it will typically be accompanied by copies of the documents it refers to labelled with exhibit marks for easy reference, but copies of those documents (generally unlabelled copies) should already have been sent at the Disclosure of Documents stage. 

• Sometimes a witness may take a copy of a photo or plan and make a mark on it such as an arrow pointing to some feature that they are going to refer to in their statement. They may then exhibit both the original (unmarked) photo or plan and also separately exhibit the marked photo or plan. In that case the original unmarked photo or plan would be disclosed at the Disclosure of Documents stage but the plan or photo which the witness marked (assuming they marked it recently for the purposes of the litigation and not some time ago for some other reason) would be sent for the first time with the witness statement at the Exchange of Witness Statements stage.    

• Exchanging witness statements at a date later than general disclosure of documents only applies to witness statements produced for the current proceedings which are to be exchanged (and are therefore privileged until exchanged). Sometimes there are statements, statutory declarations,  or affidavits made in the past - not specifically made for the current proceedings but obtained e.g. from the Land Registry -  which are relevant and these would be disclosed, with other documents, at the normal disclosure of documents stage. Also sometimes statements are made and served in the current proceedings before the disclosure of documents stage - e.g. in support of an application to the Land Registry before the Land Registry referred the matter to the tribunal - and these would also be disclosed at the Disclosure of Documents stage if not before.

In a case where expert witnesses (e.g. surveyors, engineers) are to give evidence the experts will generally write and sign reports (rather than providing witness statements) and their reports will usually be exchanged by a deadline which is after the deadline for Disclosure of Documents (in fact usually after the exchange of Witness Statements). As with witness statements, such expert reports should not be disclosed prematurely. Note that exchanging expert reports at a date later than general disclosure of documents only applies to expert reports produced for the current proceedings (and therefore privileged until served). Expert reports made in the past (not specifically made for the current proceedings) are usually not relevant but sometimes they could be relevant (e.g. if they shed light on someone's belief or the reasonableness of it in a case where belief is relevant) in which case they would be disclosed, with other documents, at the normal disclosure of documents stage.   

Some suggestions about the practicalities of disclosing documents

1. In most tribunals the rules require copies of the key documents which a party relies on or which are necessary to understand the case set out in its Statement of Case to be provided with the Statement of Case (and it is good practice to do this anyway even if not specifically required by the rules). You should be able to create a ZIP file of documents to accompany the Statement of Case (and a list of the documents to be an annex to the Statement of Case). An efficient way of doing this is explained here. 

2. In the months before and after the Statement of Case stage, and before you get to the main Disclosure of Documents stage, some relevant documents you have will already have been identified - e.g. in a barrister's Opinion - and you can load those relevant documents when identified into folders within a document management system (or simply load them into a series of ordinary sub-folders on your computer within an overall folder for the case, but most people use a document management system), making sure that when you load a copy of a document which was sent to you by the other side as part of the litigation - e.g. sent with their statement of case - you indicate that it is your opponent's copy (e.g. by using a party identifier of A if your opponent is the Applicant or R if your opponent is the Respondent). It is usual to have several folders depending what the case is about. For example if it is a dispute about rights over land, it might be useful to have one folder for deeds for one piece of land, another folder for deeds for the other piece of land, one folder for photos and another folder for other documents, each folder being in chronological order. Often the folders broadly follow how it is expected the sections will be arranged in the eBundle for the final hearing.

3. By the time you are approaching the deadline for the main Disclosure of Documents stage you should have loaded all your other relevant documents which are not privileged (and any privileged documents where you intend to waive privilege and disclose them). By this time the other side might already have disclosed their documents to you and you should have made sure that when loading those documents that you specified e.g. A if the other side is the Applicant or R if the other side is the Respondent.

4. Check that all the names and dates of the documents as loaded are correct. The name describes the document concisely - e.g. Letter Smith to Jones -  and, together with the date, enables that document to be referred to.

5. You have probably been loading up inter-partes correspondence as it is sent and received. If so it should be in a separate folder named e.g. INTER-PARTES CORRESPONDENCE. If the case has been referred to the tribunal by a body such as the Land Registry you also may have loaded previous correspondence with the Land Registry to the same folder. Most inter-partes correspondence is about administrative matters in the litigation and will not be relevant to the issues to be decided at the final hearing but there might be a few items of inter-partes correspondence which are relevant. If for any reason you have not been loading all inter-partes correspondence as it is sent and received, you should at least load any items which are relevant to the issues to be decided at the final hearing.  

6. The following, in particular, are privileged so do not load the following:-

• written advice from your barrister or any other lawyer and correspondence with your barrister or other lawyer (unless transaction correspondence some of which may not be privileged)

• without prejudice correspondence - i.e. correspondence in which settlement offers are made and responded to

7. As explained above the tribunal will typically order that witness statements, to be exchanged in the proceedings, will not be exchanged until a date which is several weeks after the Disclosure of Document stage. So signed witness statements are normally only made available after the Disclosure of Documents stage. It is possible, however, that there might be a signed statement of a witness which is available early. If there do happen to be any witness statements loaded to your document management system which are not due to be exchanged until a later date you should make sure you do not exchange them prematurely and it may help if you put them in a separate folder named WITNESS STATEMENTS TO BE EXCHANGED LATER  to remind you that they should not be disclosed prematurely.  

8. Similarly the Tribunal will typically order the report of an expert which you have instructed in connection with the litigation to be exchanged later - usually a few weeks after exchange of witness statements - and if so you do not need to load such expert reports until after the Disclosure of Documents stage. But if such reports are already available and, for convenience, you do load expert reports before the Disclosure of Documents stage, load them into a separate folder named EXPERT REPORTS TO BE EXCHANGED LATER. 

9. Send copies of your relevant documents to the other side. The essence of disclosure is providing copies of relevant documents each having a concise descriptive filename including the document name and date and also a serial number - "disclosure number". If you have already provided a numbered set of key documents, at the earlier Statements of Case stage, the serial number would continue, where you left off, in the number sequence for the next disclosure exercise. The disclosure number order of documents in each disclosure should be some convenient and logical order, usually grouped according to which folder the document was held in, and in chronological sequence within each group. An efficient way of numbering, producing and sending copies of relevant documents, and generating a disclosure list to accompany them, is explained here. 

10. The tribunal's directions may require the disclosure list to be "served" in a particular way but, because of the size normally the documents themselves would be sent out using a download link by agreement with the other side. If the tribunal has directed that the documents and list should be sent to the tribunal office, as well as to the other side, then the tribunal may have its own stipulations as to how this should be done.

Frequently Asked Questions

Why do tribunals order disclosure of documents in advance?

For the final hearing in a civil case a Bundle will be produced containing all the documents which the parties wish the tribunal to have available to consider during the hearing. In order to ensure fairness to both parties the tribunal will normally order the parties, at an early stage of the litigation, to disclose - i.e. send each other copies of - those documents they have which they will or might be using at the final hearing. One reason why the tribunal orders documents to be disclosed in advance is so that each party can properly prepare for the final hearing - for example which witnesses a party needs to use and what matters a witness needs to address in their witness statement may depend to some extent of what documents will be, or might be, used at the final hearing. 

Another reason for disclosure of documents in advance is that the parties can ask their barristers whether, in the light of all the documents disclosed, the barrister's opinion on the likelihood of success has changed. If one party is advised that in the light of the documents they are less likely to succeed then it may be that the parties will settle the case. A case can be settled at any time by agreement between the parties but often the sticking point when parties are considering settling late in the day is who is going to pay the legal costs which both sides have incurred so far, so having early disclosure of documents allows the parties - if they wish - to try to reach a settlement before the full amount of legal costs of the case has been incurred.

As well as ordering disclosure of documents which you will (or may) be relying on at the final hearing, the tribunal will typically (by rules/practice direction or by specific direction) order you to disclose other relevant  documents - so that the other side can rely on any of those additional documents if it wishes to do so. Equally the other side is likely to be ordered to disclose to you not only the documents they propose to rely on but other relevant documents also. 

What should I do if further documents come to light after I have sent out the Disclosure List?

If, despite searching carefully through documents which were in your possession or control at the disclosure of document stage, you miss some, but you come across them later, and the documents come within what the tribunal ordered to be disclosed, you must then disclose them promptly. You should so this  numbering the new documents carrying on from where you left off with your previous disclosure using the normal procedure. 

What if a party intends to rely on metadata?

Electronic documents - i.e. documents which a party originally had as computer files (or files on a phone or tablet) - as distinct from paper documents which were scanned in as PDFs only because of the litigation - may contain metadata  which a party wishes to rely on. A common example is JPG photos. Sometimes photos are taken using a phone/camera option which causes the date and time to appear as part of the actual image but if a photo taken in the past does not have the date/time as part of the image a party will want to rely, in case the date is disputed, on the date/time information in the EXIF metadata of the JPG (and perhaps also on the filename, which is part of the the file-system metadata, if the photo was taken with a phone or camera which creates JPGs with files named in a format which reflects the date and time the photo was taken). Different tribunals have different specific rules but the general approach is that a party which intends to rely on a specific item of metadata is expected to make that clear in good time by providing an image-and-metadata "print" at the Disclosure of Documents stage or not too long afterwards (if at the Disclosure of Documents stage the image-and-metadata print is loaded and included in the ordinary Disclosure of Documents; if afterwards use the procedure above under What should I do if further documents come to light after I have sent out the Disclosure List?) so that the other side is not unfairly taken by surprise at the last minute. The actual "native" file - e.g. JPG - itself should also be sent as the other side may wish to double-check the accuracy of the image-and metadata print. It is desirable that the "image and metadata print" should be taken using a well-known facility so that it is obvious at a glance how it was produced. In due course it can then be exhibited to a witness statement. 

You might want to rely on the metadata of documents disclosed by the other side. In this case you should use the procedure above under What should I do if further documents come to light after I have sent out the Disclosure List? and give the image-and-metadata PDF print a Document Name which makes clear that you have produced the PDF print from a document disclosed by the other side. 

Do I need to do anything special with video files and audio files?        

A "document" is anything which contains information and so includes any videos or audio recordings which should, if they are relevant, be included in the set of documents disclosed.

Looking ahead to the final hearing it is normally possible for arrangements to be made for specific video or audio files to be played at the 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 eBundle itself such as snapshots of video frames or transcripts of audio recordings. 

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

If the copies are identical then of course you only have to disclose one copy. If there is a significant difference - for example if one copy is the "wet ink" signed original and the other is a copy which has a  handwritten endorsement - then you would treat them as two separate documents (and load and disclose both) if the difference between them is relevant to the disputed issues in the case. In the example just given if the handwritten endorsement simply certifies that the document is a true copy then in most cases the endorsement is unlikely to be significant for the issues in the case but it could be if, for example, there happened to be a dispute over whether the person who signed the endorsement had ever seen the document because the signed endorsement is evidence that they did see it, at least on the occasion when they signed the endorsement. Load both copies and give them names like this:-

Letter Smith to Jones (without endorsement)

Letter Smith to Jones (with endorsement)  

Note that  you need to disclose video files and audio files even if you also send snapshots and/or transcripts. The other side is entitled to double check the transcripts and/or snapshots. Similarly if (as explained above) you produce and disclose "PDF prints" showing key items of metadata for a JPG, you still need to disclose the JPG itself as well.

Why do I have to work out what documents need to be disclosed, and therefore be loaded - why not just load up and disclose every (non-privileged) document I collect without reviewing them first? 

Even though it is true that not all previously disclosed documents have to be included in the Bundle (generally a document is only included if either side wants it to be), nevertheless disclosing large numbers of documents at the Disclosure of Documents stage will in itself increase costs because the other side is obliged to read and consider the documents disclosed. The tribunal will normally expect you to review the documents and to use reasonable efforts to avoid providing documents to the other party which are irrelevant to the issues in the case.

You may be thinking that someone has to spend time reviewing your documents but why do the rules say that it should be you, rather than the other party? The short answer is that you will inevitably be carrying out some kind of review of the documents you collect. For example you would have to at least check that documents are not privileged before you disclose them. Also in order to keep your legal costs to a reasonable level you will not want to have given your barrister a large number of irrelevant documents when you first asked them to advise you. So given that you will be reviewing documents to some degree, for your own purposes, anyway, it is more cost-effective if it is you, rather than the other party, which, at the same time, reviews for relevance for the purposes of disclosure. 

Similarly it is more efficient if you are the one responsible for determining the concise name (and date) to give to the documents you are disclosing because you have probably done this already for your own purposes for most of the documents and it saves the other side having to "reinvent the wheel".

Of course whilst you have to do these things for your disclosure the other side also has to do the same for their disclosure.

Why is a list of documents sent with copies of the documents

Before the invention of computers copies of documents were disclosed in paper form together with a list of them ("disclosure list") which gave, for each document, the serial disclosure number, the date of the document, and a concise description of it (and if you go further back in history before the invention of the photocopier, under the original High Court rules only the paper disclosure list itself was provided with each party having to employ a copyist to make copies by hand of those listed documents which it did not already have copies of). Since nowadays the filename of each document copy disclosed would contain this information (and the recipient can easily list the filenames) it might be thought that a disclosure list is superfluous. However the rules of some tribunals require a disclosure list to be produced and may require it to contain a declaration signed by the disclosing party that they understand the disclosure order made by the tribunal and have complied with it. Some tribunals may direct that the list must be formally "served" in a certain way - e.g. in paper form.

Even if not actually required it is good practice to provide a disclosure list as a precaution against later disputes over what was disclosed. The total size of the document copies disclosed may be such that they cannot simply be sent as attachments in one email and so they are sent by download link. If, at the same time as sending the copy documents using the file transfer system, you also send separately to the other side a disclosure list then they can then check off the documents received against that list and that should help to avoid any future dispute about which documents you disclosed and when.

Do I have to disclose correspondence between myself and my barrister?

No. A written Opinion or other written advice from a barrister is covered by legal advice privilege. This means that you can keep its contents confidential and do not have to provide a copy of it to anyone. Not only do you not have to, but you should make sure you do not, provide a copy to the other side by mistake. An Opinion is a frank assessment of the strong and weak points of your case and showing it to the other side would give them an unfair tactical advantage. You will not be relying on the written Opinion or other written advice from a barrister as evidence. You may be thinking that it is a bit odd to say that you will not be relying on a barrister's Opinion, but the point is this. The documents you are identifying at the present time are evidential documents - documents which themselves help to prove one or the other party's case. A written Opinion is not itself an evidential document. It may contain legal arguments but those legal arguments stand on their own merits. Those arguments can be made by your barrister at the final hearing (to the extent that they are still appropriate given e.g. how the witness evidence comes out at the hearing). Some (not all) legal arguments and factual assertions are of a type which you have to notify the tribunal (and the other side) about in your initial Statement of Case (if you don't you might not be allowed to use those particulars arguments later - so you should have made sure that your statement of case was drafted by a barrister) but a written Opinion which happens to contain those arguments or other arguments is not a document you should show to the other party. 

It all sounds a bit complicated. Can I ask a barrister to carry out the disclosure of documents process for me?

A barrister can help. A barrister can:

• Explain to you and advise you - in general terms - about what the orders made by the tribunal and/or the tribunal rules and/or practice directions allow and/or require you to do with regard to disclosure of documents

• Advise you whether a particular document is subject to legal privilege (if a document is legally privileged you don't have to provide a copy of it to the other side even if it is relevant)

• Advise you whether it would be to your advantage to waive privilege in a particular privileged document (you can choose to provide a copy of a particular privileged document, such as a recently taken photo, to the other side so that you can then then use it)

• Advise you if a particular document is clearly relevant (so that you have to provide a copy of it and/or should rely on it)

But a barrister cannot definitively advise you that a particular (non-privileged) document is irrelevant (and so does not need to be disclosed). One reason for this is that a document which on its face does not appear to be relevant to the disputed issues as they are currently understood may, nevertheless, have a bearing on the case when considered together with other documents. 

Take the example of a dispute about a right of way. Whether a certain route has been used, as of right, for at least 20 continuous years in the past may be relevant to whether a right of way exists, and whether a made up track existed over that route at particular times in the past may therefore be relevant. Correspondence indicating that a water tower (some distance east of the route and not accessed by it) was built in 1925 would be, on the face of it, irrelevant. Likewise correspondence indicating that a radio mast was erected in 1950, some distance further east, would also seem irrelevant. But suppose some old photographs come to light, taken looking east and showing the track. Any photo in which neither the water tower nor the radio mast can be seen must have been taken before 1925. Any photo showing the water tower but not the radio mast must have been taken between 1925 and 1950, and any photo showing both must have been taken after 1950. So it turns out that the correspondence, previously thought irrelevant, happens to be relevant, in combination with the old photos, because it helps to date the photos and thus shed light on the question of for what period of time the track was made up and, presumably, used. 

So although a barrister can help by providing some advice during the disclosure of documents process, a barrister cannot take overall responsibility for the disclosure of documents process.  Only you, who are aware of all the documents, and know what searches you have carried out, are in a position to determine definitively that a document is irrelevant (and so need not be disclosed) and in a position to sign any disclosure declaration required.

The other side has disclosed documents to me - what should I do with them?

Load the documents disclosed by the other side making sure that for each document loaded the correct identifier is specified (e.g. A if the other side is the Applicant or R if the other side is the Respondent). See here for more information about how to do this.

Note - Disclosure in the High Court and County Court

The above description is based on disclosure in specialist tribunals. As well as specialist tribunals, civil courts also typically use a Disclosure of Documents procedure but there are significant differences. Generally specialist tribunals have specialist judges and deal with specific specialist areas of law (such as Land Registration or restrictive covenants) and in most specialist tribunal cases there are not a huge number of relevant documents so that where the specialist tribunal orders disclosure the expectation is that the parties can thoroughly search for all relevant documents in their possession and control. Civil courts, on the other hand, deal with a great variety of different areas of law and whilst in most cases in the civil courts there are not a large number of documents, in a significant minority of civil court cases there can be a very large number of potentially relevant documents in the possession of the parties so that no matter how thoroughly the parties searched it would be practically impossible to be absolutely sure of finding every last relevant document - at least if costs are to be kept to a reasonable level. In order to address this problem civil courts have developed special procedures by which the parties can agree (with the court finally deciding in the absence of agreement) to undertake limited searches the parameters of which are defined with some precision. 

Typically the court rules require copies of  the key documents which a party relies, or which are necessary to understand the case set out in its Statement of Case, to be sent out with its Statement of Case at the beginning of proceedings but thereafter further disclosure consists of selecting from a menu of disclosure "models" each with some detailed provisions which can be further refined for the circumstances of the case in hand. The quid pro quo of only having to provide copies of documents uncovered by limited specified searches is usually that there is an additional obligation to disclose any further adverse documents which a party is actually aware of (however they come to be aware). The question of limited specified searches has to be considered and documented for all civil court cases subject to these rules even if, in the end, it is decided that use of such special procedures and limits would actually be counter-productive for the particular case. Consequently although the general idea of disclosure of documents in the civil courts is similar to that in other tribunals, there are many complications, and differences of detail, in the court procedures. 

Although the disclosure "models" used for disclosure in the courts are mainly concerned with limiting the scope of searches (and possibly automating them using AI) some "models" may apply a degree of extended searching. They may require searching for "train of enquiry documents" (documents not probative in themselves but giving a clue as to where to look for further information). A perhaps surprising feature of some models is that they initially only require a list of document to be provided and the receiving party then has to specifically ask for copies (the rules for such models may use the word "disclosure" in a restricted sense as meaning simply stating that a document exists and the subsequent providing of a copy on request is then known as "inspection"). Some models may require parties, as well as listing relevant documents in their possession or control, to also ascertain which documents they had in the past, but no longer have copies of, and list those as well if they might be relevant. Some disclosure models used by civil courts require privileged documents to actually be listed (by groups, not as individual documents) in a special section of the disclosure list although there is, of course, no requirement to provide copies (unless the other side apply to the court and successfully argue that some documents listed in the special section are not actually privileged after all). 

By contrast in specialist tribunals there are usually no predefined disclosure models in the tribunal rules and the tribunal's order itself will typically just state the criteria for what has to be disclosed. This article is not concerned with the complications of disclosure of documents in civil courts but only with disclosure in specialist tribunals where there is an order for disclosure of relevant (non-privileged) documents in the possession or control of the parties without specification of searching methodology.)

Disclaimer

This information page is designed to be used by clients of John Antell who have entered into a written agreement for the provision of legal services. It is only an overview to give an example of the kind of work which may be involved in the disclosure of documents exercise, and the procedures for disclosure do vary between different tribunals. Also any tribunal may give alternative procedural directions in an individual case. In order to be reasonably concise I have had to leave some details out - details which are likely to affect what the procedural law would say about your own situation. So please do not rely on the above but contact me for advice. 

Any information about specific computer techniques is provided for information purposes only and you should satisfy yourself, before using any techniques, software or services mentioned, that the techniques are appropriate for your purposes and that the software or service is reliable.

Every reasonable effort has been made to ensure that the information in this page 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.

This page was lasted updated in December 2025. Disclaimer