For each copy document received which does not match copies already in Bundledocs/eBrief Ready, load it initially to a new temporary section. If you are at the Statements of Case stage and the documents you are sent are key documents with unique reference numbers - e.g. R1, R2, R3 etc. - then set their Custom Text field (Bundledocs) or Exhibit field (eBrief Ready - you have to set up this field if not already defined) accordingly. If, on the other hand, you are at the general Disclosure of Documents stage you should instead set the Ref field for each document loaded to a capital letter identifying the party which disclosed it - e.g. if the document was sent to you by the Respondent enter R in Ref.
Many of the copies of documents you have received will be the same as document copies you already have loaded in which case you don't have to load the new copy received. Print out the numbered list of documents you have received, put it next to the numbered list of documents you sent out and mark the list you have received to record that you have not loaded documents for that reason in case there is a query later. For example if you are the Applicant and if a document sent to you by the Respondent at the general Disclosure of Documents stage is the same as document number 35 on your disclosure list, write =AD35 next to its entry on the Respondent's list. AD is an abbreviation for "Applicant's Disclosure".
Ideally the other side, when disclosing documents, will send them to you as computer files each one with a filename with a descriptive name and the date - e.g. Letter Smith to Jones 22 May 2020.pdf - in which case it should be easy to load. Or you may have been sent a large single PDF containing multiple documents each of which is bookmarked with a descriptive name and date so that you can easily extract the individual documents and load them.
Note 1: Before you decide that a document copy you have received is the same as a copy already loaded, check carefully that it really is the same. The recipient of a letter might have made a hand-written annotation on it, for example, so that although, at first glance, the copy disclosed by each party may appear to be the same, on closer inspection they are in fact different, so that the document copy should be loaded after all as a separate document.
Note 2: Most documents consist of typed text and providing the copy already loaded is clear it is not necessary to load a new copy received just because it is very slightly clearer. However if a document copy received is a photo, plan, or diagram and it is clearer than the copy already loaded then you should normally load the new copy. Then set the copy originally loaded to Excluded status - the most convenient way of doing this is to create a section named Duplicates, set that section to Excluded status, and move the copy originally loaded into it.
Note 3: 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, or should be, subject to very strict rules as to what may constitute a valid "group". If this is validly done then you can load accordingly but if any grouping is inappropriate you will need to ascertain and enter the dates of each individual documents within the group.
If the other side have sent you computer files each one with a filename named with a descriptive name and the date e.g. Letter Smith to Jones 22 May 2020.pdf then there should be no dispute later about what was disclosed, but if the documents have been sent in some other, less satisfactory, form it may be wise to confirm with the other side exactly what they have disclosed to guard against the possibility of disputes arising later (perhaps arising just before the final hearing when the issue of what documents can be included in the Final Hearing Bundle arises).
If documents have been disclosed in paper form, one of the problems which can arise is that there may be a dispute over whether a particular document was in fact disclosed. When the Final Hearing Bundle is being compiled a party, the Applicant say, may wish to include a document, the Respondent may object saying that they have not seen it before, the Applicant may point to the document being on the list sent when documents were disclosed and say that they are sure that they sent a copy of everything on the list and, in any case, if they had missed out a copy why did the Respondent not raise this at the time? The Respondent may reply that because copies were received in paper form, and the description of documents on the list was a bit cryptic they had thought that another document a copy of which was included was the one referred to on the list.
To guard against such possible disputes it is good practice, whenever the form of documents disclosed by the other side raises any doubt, to send back to the other side copies of the documents they have disclosed (either all documents they have disclosed or some particular category where there is doubt), in the form of computer files each one with a filename named with a descriptive name and the date - e.g. Letter Smith to Jones 22 May 2020.pdf and ask them to confirm that they agree that this is indeed all the documents they have disclosed/disclosed in that category.
If you decide to send back to the other side copies of all the documents they have disclosed (in a particular category) in the form of individual computer files in order to avoid any later dispute about what was received, you can do that as part of the process of loading the documents. After you have loaded the documents to the new temporary section and before you move the documents out of that temporary section to other sections, do the following. Set the status of all other sections temporarily to Excluded so that the documents in them are not included in the ZIP file you are about to generate and then Generate a ZIP file with a list entitled e.g. Confirmatory List (produced by the Applicant) of documents disclosed by the Respondent - if you are the Applicant or Confirmatory List (produced by the Respondent) of documents disclosed by the Applicant - if you are the Respondent.
You can then send the ZIP file with the list to the other side saying that to avoid any misunderstanding or dispute later on can they confirm that they agree that it is a complete set of the documents they have disclosed in the category.
Finally set all the original sections back to Included.
Although it depends, to a certain extent, on the type of legal proceedings, it is usual for the parties to disclose documents at the following stages of litigation before the final hearing:-
1. As part of a Land Registry application or during the pre-action correspondence phase (generally documents produced in this phase, before formal legal proceedings have actually commenced, are produced voluntarily rather than being ordered by the tribunal) or
2. At the initial Statements of Case stage
3. At the main Disclosure of Documents stage
4. Late disclosure - occasionally, despite searching, a document which should have been disclosed is missed at the main Disclosure of Documents stage so they disclose it as soon as it comes to light
If the other side is disclosing documents to you at stages 1 or 2 you should consider whether you need to challenge their authenticity. If the other side is disclosing documents to you at stage 3 or later you should consider whether you need to challenge their authenticity and also consider the question of their completeness.
When the other side discloses documents to you at stage 3 or later - so that they are, at that stage, purporting to have disclosed all relevant (non-privileged) documents to you (or all documents in particular categories depending on what the tribunal has ordered) - you should consider whether there are indications that in fact not all relevant documents, which they other side has, have been disclosed. For example they may have disclosed an internal email which responds to a report but have not disclosed the report itself. Or perhaps the body of an email is provided, and you can see from it that there were attachments, but the attachments themselves have not been provided. Or you might have special knowledge which means that you know, or strongly suspect, that the other party has relevant documents which they have not disclosed. The other side has a duty to comply with any order the tribunal makes about disclosure, searching for relevant documents, but they may genuinely not be aware of the existence of certain documents until you specifically ask them to disclose them. For example if the other party is an organisation and you attended a meeting with them you may have noticed a particular employee of that organisation taking notes so you know that those notes exist but the person in the organisation dealing with its disclosure obligations may not be aware of that until you ask them to disclose those notes.
Generally speaking a party has to provide copies of relevant documents unless it no longer has them and it no longer has control over them. If a party has sent documents to their bank for safe keeping, for example, those documents are still under their control because they have the power to require the organisation holding them to return them. And even if the organisation is keeping documents such as deeds for unregistered land as security for a loan, the party still has the power to require the organisation to provide copies. So that is not a valid reason for failing to provide copies of them.
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 had disclosed a 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. If, however, you think that the letter is a fabrication – that it is not a genuine copy of a letter written on the date it bears 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 unusual for the authenticity of a document to be challenged.
Traditionally the courts had very strict rules about what documents could be admissible as evidence and documents had to be formally proved to be authentic by being "produced" at the final 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 are normally assumed to be authentic unless the other side specifically challenges the authenticity of a particular document.
You therefore need to consider whether you need to challenge the authenticity of any of the documents which are disclosed by the other side. 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 that a document disclosed by the other side is not authentic. In civil courts there is usually 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 do not accept the authenticity of a document disclosed and require it to be formally "proved" by a witness at the final hearing - otherwise they are presumed to admit authenticity, but in other tribunals there may be no specific deadline but nevertheless a party which has a specific reason to suspect that a document disclosed by the other side is not authentic is expected to raise the matter 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 an exact or approximate date on the disclosure list and that is disputed. Different tribunals have different rules and practices about notification in circumstances such as these but generally in all cases you need to look promptly at all documents disclosed by the other side to see whether there are any challenges you need to make. 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 - 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 load the letter for inclusion in the eventual eBundle in such as way that it is clear at the final hearing that if the other side wish to rely of 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 eBundle the letter appears clearly and concisely. The words **authenticity disputed** should be added to the Document Description or, if it is just the claimed date of the document which is disputed, the Document Date should be set to Date Disputed (before you get to this stage and while you are actively querying the document with the other side you can add the words **authenticity queried** to remind you to follow it up).
You may want to rely on some documents disclosed by the other side and, especially in the case of photos, their metadata. 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 by, for example, sending a PDF "print" of the image with accompanying metadata to the other side in good time. If you have not been sent a JPG itself but only a paper or PDF copy without metadata you may want to ask the other side to send you the JPG so that you can look at the metadata and decide whether to create a "image-and-metadata PDF print". You would then load the JPG (if not already loaded) and the image-and-metadata PDF print and disclose it in the usual way. The JPG would have a Custom Text/Exhibit field indicating that it was provided by the other side - e.g. R35 if the other side is the Respondent. The image-and-metadata PDF print would have a Custom Text/Exhibit field indicating that you provided it - e.g. A65 but the Document Description would say e.g. Image and Metadata Print of JPG [R35] to make the position clear. You would then send a copy to the other side saying that you may wish to rely on that "image and metadata PDF print" at the final hearing.
Once you have reviewed the new documents and at least set in motion any appropriate challenges by writing to the other side, and you have set Ref (or Custom Text/Exhibit) as appropriate, you are ready to move the new documents to the most appropriate positions in the most appropriate sections. But before doing so, double-check that Ref or Custom Text/Exhibit is correctly set for documents already in those sections so that you do not lose track of which side disclosed which document copies.
Disclaimer
This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and will not be applicable to every case: it is intended to be used only in conjunction with more specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else.
The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.
This page was lasted updated in April 2025. Disclaimer.