Disclosure of Documents

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. It might be decided not to use some disclosed documents after all. 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 as explained below you have to keep both 1 and 2 in mind.

• 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 not come under (2), it would 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 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 it will no longer 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. Documents in your "control" includes documents which someone else (e.g. your  bank, solicitors or accountants) is holding for you or which someone you engaged or employed (e,g. an accountant or personal assistant) created whilst doing work for you, but you won't be ordered to, for example, ask independent individuals whom you have no control over whether they will give you copies of relevant documents.  But note that:

  • • There are a number of public registers such as the Land Registry and Companies House which everyone has the right to obtain records from. Documents held by such organisations are not considered to be in your "control" and the tribunal will not order you to look for documents in such public registers. But if there are documents held by organisations which only you (or you and a limited number of other people) have a right to then those documents might be considered to be in your "control".

    • If you choose to visit a public registry, looking for documents, the fact that you have seen a document on the premises of the public registry does not mean that that is a document in your control, but if you take or order a copy then that copy is then a document within your control which must be disclosed if relevant. Similarly if you access a public registry remotely and a copy of a document is downloaded to your computer that copy is then within 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.

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.

How to Disclose 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 generate 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) using your document management system. See 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 a document management system, making sure that for each of your documents which you load you indicate that it is your document rather than your opponent's document (e.g. use A if you are the Applicant or R if you are the Respondent). If a document has already been exhibited - e.g. it has been used as an exhibit with a statement which has already been submitted e.g. in an application to the Land Registry - you can load that copy with the exhibit mark label if it is as good quality as any other copy you have, but if the copy with the exhibit mark label is of poorer quality than another copy you should load both.

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) making sure that A is specified if you are the Applicant or R if you are the Respondent. By this time the other side might already have disclosed some documents to you and you should have made sure that when loading those documents that you specified A if the other side is the Applicant or R if the other side is the Respondent. 

4. If you have loaded documents because you considered at the time that they might be relevant, but you were not sure, now is the time to decide whether they are relevant or not.

5. Electronic documents - i.e. documents which you 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 you may wish to rely on. For example if a photo was taken using a phone/camera option which caused the date and time to appear as part of the actual image then that proves when it was taken but, if not, for those photos which you intend to rely on you will want to make an image and metadata PDF "print" to prove the date/time taken and load that (remembering to specify A or R). Typically you would then move the JPG in the document management system to become a sub-document of the PDF "print" which was made from it. Generally you only need to do this for JPG photos which you will be relying on - not for JPG photos you are disclosing just because they are relevant but do not yourself propose to rely on. If the other side wishes to rely on the metadata in those other JPGs which you will not be relying on they can produce their own image and metadata print.     

6. Just before Disclosure of Documents you should temporarily set all the other side's documents to a status, in your document management system, of Excluded (e.g. if the other side is the Respondent set all documents with R specified to Excluded) so that it is only your own documents which are included in the file you generate for your disclosure.

7. For convenience you might have been loading inter-partes correspondence to a section in your document management system whenever it is sent or received (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 that section as well). If so you should make sure that section is set to Excluded. If there are any individual items within the section which happen to be relevant to the issues which will be decided at the eventual final hearing, copy them to another (Included) section  

8. 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

9. 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. This is so that each side can decide, in the light of what the disclosed documents show, what witnesses are needed and what topics their statements need to cover. So signed witness statements are normally only 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 - for example a witness statement produced when a request was made for a temporary interim injunction to preserve the status quo pending the final hearing. 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 that they are in a new temporary section named WITNESS STATEMENTS TO BE EXCHANGED LATER  and set that section to a status of Excluded so that the witness statements are not disclosed prematurely.  

10. 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 - so you do not need to load expert reports until after the Disclosure of Documents stage but if, for convenience, you do load expert reports before the Disclosure of Documents stage, load them into a new section named EXPERT REPORTS TO BE EXCHANGED LATER  and set that section to a status of Excluded to ensure that they are not disclosed prematurely. 

11. Check that all the names and dates of the documents as loaded to your document management system are correct and are sorted into date order within sections. The name describes the document concisely - e.g. Letter Smith to Jones -  and, together with the date enables that document to be referred to. (It will eventually be used in the index and bookmarks of the Final Hearing Bundle if the document is included in that bundle, it is used when selecting documents to be included in the Final Hearing Bundle, and it is of general use throughout the litigation process: for example it is used not only when disclosing documents to the other side but also when the other side identify any documents which they wish to challenge the authenticity of.)

12.  The final step is to send copies of the documents to be disclosed off to the other side. The essence of disclosure is providing copies of the documents each of 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.

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 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 contains 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. The list may be required to be formally "served" in paper form.

(Note that a few tribunals - typically those which deal with a very wide range of types of case including cases with very large quantities of documents - may allow disclosure "by list and category" - i.e. allow a list whose entries are mainly of individual documents but which also contains some group entries. This is, however, subject to very strict rules as to what may constitute a valid "group".)

Even if not actually required it is good practice to provide a 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 a bulk file transfer system. That bulk file transfer system may not provide a permanent record of what was sent but 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 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. Some tribunals may direct that the list must be formally "served" in a certain way - e.g. in paper form.    

You would use your document management system to send the copy documents either directly, if it can generate a download link for selected documents, or by using the document management system to generate copies which you then then send out by a suitable method. How to send copies of documents (and generate a list) is explained here. 

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. Similarly 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 has ordered to be disclosed, you must then disclose them promptly numbering the new documents carrying on from where you left of with your previous disclosure.

The most important thing is to provide copies of the disclosable documents promptly but if you can produce a supplementary numbered list of the new documents, and provide that at the same time, so much the better. You can create a temporary section, load the further documents into it, and set all other sections temporarily to Excluded status, so that you can then produce copy documents and a supplementary list just containing the extra documents 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 normally want to rely, in order to show when the image was taken, on the date/time-taken 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/time 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 and provide 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. 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 print a Document Description such as Image and Metadata Print of JPG [R35] to make the position clear. 

Do I need to do anything special with videos files?        

A "document" is anything which contains information and so includes any videos 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 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. 

If the current state of land or of some object (such as a piece of machinery) is relevant then it is better if a series of photos can be taken rather than 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 eventual eBundle. 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 as part of Disclosure of Documents. Generally they are expected to take the relevant snapshots from the video and to send those to the other side at the Disclosure of Documents stage or not too long afterwards (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?) thus alerting the other party to the particular frames of the video which are considered significant and hopefully avoiding the need for the video itself to actually be played at the final hearing. If the date that the video was taken is important and/or likely to be disputed a metadata "print" made with a well-known facility should also be sent.

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. 

Document Date                            Document Description

Note: if the video is of a meeting and it is what is actually said which is relevant then normally a transcript - rather than snapshots - will be needed.

Do I need to do anything special with audio files?        

A "document" is anything which contains information and so includes any audio files 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 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 an audio file can be made mainly - or preferably solely - by reference to static documents which can actually be included in the eBundle itself. 

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 eBundle 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 eBundle.  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. 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 immediately after the Disclosure of Documents stage.          

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 Document Descriptions 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.    

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 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 into your document management system 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 details about how to do this.

Note - High Court and County Court

Note that, as well as specialist tribunals, civil courts also typically use a Disclosure of Documents procedure. 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 thouroughly search for all relevant documents in their posession 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 are 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, some "models" may apply extended searching within that limited scope. 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. 

Any explanation about naming conventions or other matters in the context of legal procedure 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 procedural law would say about your own situation. Also, even as an overview, the information will not be applicable to every case as procedures vary between different courts and other tribunals and any tribunal may give alternative procedural directions in an individual case. 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 April 2025. Disclaimer