Finding Documents

Collect the relevant documents - you have to do this

When you ask me to give you legal advice, or to draft a pre-action letter or a statement of case in a case in a court or other tribunal, or an application to the Land Registry, you will need to provide me with copies (as computer files not on paper) of relevant documents which you have, or can obtain. You will also need to look for documents during the course of litigation, particularly at the Disclosure of Documents stage. The documents you have may be on paper, or they may be JPG photos or MP4 video files, or PDFs and spreadsheets, on your computer, tablet or mobile phone, or emails "in the cloud" such as in Gmail. Whatever the form of the documents, and wherever they are located, you need to preserve the originals, and make copies. 

Depending what your case is about and on whether there is still relevant evidence available to be photographed, you may need to take photographs of land, of buildings or of objects. You might need to take copies of webpages.

There may be relevant documents which you do not currently have but which you might be able to obtain by asking other people or organisations, public or private, if they can provide copies of documents they may have.

If your case concerns land you might obtain historical satellite, aerial or ground-level photographs which were taken in the past by a variety of organisations. Many of these are available free using Google Earth Pro. A well known source of street level photographs is Google Street View. In addition to public sources of images, the current or previous occupants of land, or neighbours and relatives who may have stayed, may have historical photographs.

You can obtain historical maps, and/or obtain current maps such as an Ordnance Survey map. You might want to obtain a copy of the relevant part of the map of Adopted Highways (held by Highway Authorities such a county councils under the Highways Act 1980) or of the Definitive Map of Public Paths (also held by such authorities, under the Countryside and Rights of Way Act 2000). These may provide useful information about the land you are concerned with if it borders a highway or has a highway passing through it. 

You might want to obtain records of planning applications which are applications for permission to change the use of land and/or build on it.  A planning application might be accompanied by a surveyor's report containing photographs. It will invariably be accompanied by plans. Unless it is a retrospective application to regularise what already exists, a planning application will be seeking permission to do something in the future and, if permission is granted, the landowner may of course decide not to make the change after all. Nevertheless plans and forms in planning applications may reveal information about the then current use. The accompanying plans often include an "existing site plan" as well as a plan of what is proposed. Even if there is no separate "existing site plan", often it is clear, on a plan of what is proposed, that some features are existing features already present on the ground. Thus planning application records, if used carefully, can sometimes help to supplement information obtained from large-scale maps. 

You might want to obtain records of local land charges. If relevant you can obtain Wills from the Probate Registry. 

Some documents relevant to companies registered under the Companies Acts and limited liability partnerships can be obtained from Companies House. This includes companies which have been dissolved within the last 20 years. Most documents held by Companies House are available to download but some pre-1990 records may be held only in paper form and a visit to their offices may then be required. Records of companies dissolved more than 20 years ago might be held by the National Archives. Documents for mutuals can be obtained from the FCA

Be careful to distinguish between documents you have obtained recently and documents you have had for some time. This is very important.

The reason why barristers do not investigate or collect evidence - and some exceptions

The reason why barristers do not investigate or collect evidence is that, if matters get to the stage of litigation, the way in which evidence was collected might be challenged and need to be proved and a barrister cannot act as a witness - at least not in the same case as they act as advocate. For example in case the date that a photograph was taken should be disputed it is usual for the person who took a photograph to say, in their witness statement, when they took it. What a website - e.g. the website of your opponent - contained on a particular day might be disputed so if a PDF copy of a webpage needs to be taken, you need to take the copy so that you can, if necessary at the final hearing (trial), formally confirm the URL and the date on which you took the copy. So you yourself will need to carry out any investigations, searches, photography etc. which may be needed, and provide me with the JPG photos or PDF copies of paper documents found. 

If, when I am drafting an Opinion or carrying out other drafting work, it becomes apparent that you have not provided me with a key document but it just happens to be a document I can easily obtain an official copy of from the website of a statutory public register, such as Companies House, I may, to save time, obtain an official copy myself direct. It is proper for me to do this because in these circumstances there is little risk that the way the document was obtained might later become the subject of a dispute, because in the unlikely event that an opponent had any doubt about the genuineness and completeness of the document they could simply request their own official copy of the document from the same public register, and compare. Of course the accuracy of the contents of a document - filed accounts for a company, for example - obtained from Companies House may be a matter of dispute but the fact that it is a genuine copy of a document which had been filed at Companies House is unlikely to be a matter of dispute. 

Of course even if I have obtained some documents direct from a public statutory register that does not exclude the possibility of their being other relevant documents in the same statutory register and it is for you to carry out as much investigation/searching as you think appropriate given the amount of time you have and the importance of the matter to you.

Exceptions - when barristers can obtain evidence

As explained above, where a piece of evidence, which could easily have been obtained by the client when providing documents to the barrister, has accidentally been missed out, and it just so happens that it can easily be obtained online by a barrister in circumstances where there is unlikely to be any challenge to the way in which the evidence was obtained if it is subsequently used in litigation - e.g. because it is obtained from a public statutory register - a barrister, to save time, might obtain it in that way rather than ask the client to obtain it. 

In addition to that unplanned example, there are a limited number of circumstances where, because of their specialist expertise, barristers are specifically engaged to obtain evidence, but this can only be done if the nature of the evidence and the circumstances in which it is to be collected (as opposed to the evidence itself) are such that the way the evidence was obtained is very unlikely to be challenged later. An example is searching for historical documents at the Land Registry as explained below.

An example - searching the Land Register

The Land Register contains, for each property title number, a Register of Title document and a Title Plan document. The general idea of land registration is that when someone buys land they are bound by the burdens on the land (such as a right of way over it or a restrictive covenant limiting how it can be used) but only if those burdens are noted on the Register of Title. There are some exceptions to this but that is the general principle. A note on the Register might be self-contained text or it might be text which refers to a document filed under the title number. The Title Plan, Register of Title, and any filed documents referred to in the Register of Title, together constitute the main information which a buyer is bound by and these are the primary documents for a title in the Land Register.

But there are, in fact, a large number of other documents filed under each title number. The original idea of land registration was that these should not ordinarily need to be looked at but in fact they might need to be obtained if it is suspected that there is an error in the Register of Title and/or Title Plan or if for example - as is often the case - the note in the Register of Title of a restrictive covenant identifies the burdened land but does not precisely identify the benefitting land entitled to enforce the covenant. The text might simply say that the restrictive covenant imposed by a certain Conveyance is for the benefit of "the retained land of the Vendor" and then it is necessary to look at other conveyances, which may be filed under that title number or under other title numbers, to piece together the sequence in which plots of land were sold off so as to try to establish what land was  "the retained land of the Vendor" at the time.

Another example where not-referred-to documents might be needed is that some easements, such as rights of way, are "overriding interests" which means that in some circumstances they can be binding on a purchaser of  land even if not mentioned on the Register of Title of the burdened land. 

Although the Land Registry might provide a list of the documents filed under a given title number, finding out the title number to look under is not always straightforward because different parts of an area of land may have had different title numbers in the past and some historical documents relating to unregistered land - which has no title number - may be filed  under the title number of a piece of nearby land depending on the sequence in which land was, in the past, divided and sold.  And the lists supplied for each title number are not as helpful as they might be often only giving the dates of some of the documents listed.    

Although the Land Register is a public register and lawyers have no greater right to obtain copies of documents than anyone else, lawyers have access to online systems which allow PDF copies of documents to be downloaded, not always instantly but generally without too much delay. Members of the public requesting an official copy of a document from the Land Registry are entitled to see exactly the same documents but they have to send requests in writing by post with a cheque for the statutory fee and there is then a delay while their cheque clears  and a further delay before the response - which will either be a copy of the document or a letter saying that the document could not be located, from the information supplied, under the title number specified - arrives by post. Such a delay might not matter too much were it not for the fact that typically, when searching the Land Register for historical documents, you need to see one document, which may not be the document you are ultimately seeking, before you can use information in it to try to locate another document, and then use information in that to locate another document, etc. You can use a postal order rather than a cheque but that means a visit to the post office and will speed up the overall process of obtaining an official copy of a document from the Land Registry by post only marginally. The cumulative effect of having to wait a minimum of a week between each request means that the overall search process cannot be completed in the timeframe which is required for many cases.  Also someone who is not a property lawyer, and not familiar with general conveyancing and Land Registry practice,  will not necessarily know, in all cases, how to use the information in one document to make requests for copies of other documents.    

Because it is difficult for clients themselves to effectively carry out searches for historical documents in the Land Register, and because there is no professional objection to barristers carrying out a search at the Land Registry (because there is no realistic possibility of anyone seriously disputing the reliability of copies of documents as anyone given the copy obtained can, if they wish, easily obtain their own official copy from  the Land Registry) barristers may be willing to undertake Land Registry searches, in cases where that is necessary, as an exception to the normal principle that barristers do not investigate or collect evidence.                  

FAQs

In the past I have engaged solicitors - might correspondence sent by my former solicitors  be relevant?

Letters and emails sent by you to your solicitors or received by you from your solicitors might possibly be relevant but they will usually be privileged documents (unless, unusually, the other side was copied in) which need to be kept separate from other (non-privileged) documents. Sometimes it is necessary to refer to privileged documents but more often it is the correspondence between your solicitor and the other side (which is not privileged) which needs to be referred to and you should obtain from your former solicitor copies of all correspondence which your solicitor sent out/received from the other side, both letters and emails. Your solicitors may have sent you drafts of letters for your comments but you need to obtain copies of the letters as actually sent out by your solicitor to the other side.

Should I look for documents about my opponent's past behaviour - for example any court or other tribunal cases they may have been involved in in the past?  

You may be wondering whether it would be useful to also look for cases involving your opponent in case they show some fact or pattern of behaviour by your opponent which might be relevant to the current dispute. It is in fact quite rare for past cases involving disputes between your opponent and some other person to be relevant but if you have the time and wish to do so, you could make enquiries.  

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.

This page was lasted updated in October 2023.   Disclaimer