What administrative work is necessary in a court or tribunal case?
Scanner/printer shown above is a Brother MFCJ6930DW
You can engage a barrister to represent you in court or tribunal hearings, and to draft the legal documents needed for a case but in litigation there are some things you have to do.
Searching for and collating documents and dealing with disclosure
If you are making an Application to the Lands Chamber of the Upper Tribunal, under s.84(1) of the Law of Property Act 1925, for the discharge or modification of a restrictive covenant, then the documents you will need to try to obtain - e.g. planning permissions and property deeds - are generally fairly well defined. You might have to do some searching but you normally know fairly precisely what you are looking for.
In most other tribunals and courts, however, including the Property Chamber - Land Registration of the First Tier Tribunal, and the Business and Property Courts, there is potentially a much wider range of documents which could be relevant to the case and more thought is needed about where to search and how to decide, out of all the documents you come across, which are, or may be relevant.
You will already have identified some relevant documents at the time when you initially sought advice from a barrister but, particularly after the "pleadings stage" of litigation, when the issues in dispute between the parties have come into greater focus, a further search for documents will need to be made. Barristers do not investigate or collect evidence so you will need to look through the documents you have (by "documents" I mean not just formal legal documents but anything written including letters and emails and also, where relevant, photos) and identify any further relevant documents. If there is a possibility that other people or organisations may have relevant documents you need to look into that as well whether that means searching public registers or asking private individuals whether they have relevant documents which you can have copies of.
You will need to do this further searching, making copies of what you find (and, of course, carefully preserving original documents) for two reasons:
1. Relatively early in the litigation process, many months before the eventual trial, the court or tribunal will normally order the parties to disclose - i.e. tell each other - which documents they will or might be using at the eventual trial
2. At the same time as ordering you to do (1) the court/tribunal will often order you to disclose, as a minimum, certain types or classes of documents irrespective of whether you wish to use them at trial - this is so that the other side can rely on any of those further documents at trial if it wishes to do so. (The other side, of course, is also likely to be ordered to disclose to you not only the documents they propose to rely on but also, as a minimum certain types of classes of documents.)
Because the court/tribunal's order under (2) above imposes a legal duty on you, you have to comply with that duty by doing at least the minimum which the order requires irrespective of how relatively important or relatively unimportant the case is to you. How much further you go in looking for further documents which you might want to rely on depends on how important the legal proceedings are to you but because the loser in legal proceedings is generally ordered to pay the legal costs of the winner, most legal proceedings are important for that reason alone even if the underlying dispute is of less importance, so in order to find relevant documents you may want to extend your search outside your home or office. For example if the case is about disputed land and it is important to know who was using the land 20 years ago and what for, whether land was cultivated as a garden by an adjoining house, and fenced in, for example, and over what period, you might contact aerial photograph companies, search for old maps, make enquiries to see if the people living there (or their relatives who may have visited and remembered playing in the garden) can be traced, etc.
Generally the orders the court/tribunal makes under (2) above will only require you to disclose certain categories of document which are (or have been) in your control. In your "control" means either physically in your possession or held by someone - e.g. your employee or your bank - on your behalf so that you are at least entitled to obtain a copy of, if not actual possession of, the document. So if you search public registers or ask other people not under your control for documents you will generally be doing so by choice, rather than being required to do it by the court's/tribunal's order.
However the court's/tribunal's disclosure orders create an ongoing legal duty so that if, for example, you are ordered to disclose all title deeds in your control for a particular property, that means you have to not only disclose those deeds for that property which are in your control when the order was made but you also have to disclose any further deeds for that property which come into your control at any time in the future before the end of the case. So although the order will not oblige you to ask third parties for copies of their documents, if you do decide to ask third parties if they have copies of deeds for the property (to see if they may help your case) when those copy deeds then come into your control (when you receive them by post or email for example) you are then obliged to disclose them (even if they happen to undermine your case rather than support it) because of the ongoing legal duty to disclose such documents which are in your control.
Sometimes the court's/tribunal's order will require you to search for, and disclose, particular categories of documents which are (or have been) in your control. Sometimes the court's/tribunal's order will simply require you to disclose documents in a particular category which you happen to already know are (or have been) in your control without requiring you to carry out a search (though if you are an organisation what documents every person with accountability or responsibility knows of needs to be checked). But if you do at any stage carry out a search and find further documents in that category (or happen to come across them in some other circumstances) then, of course, you have to disclose those further documents.
The court's/tribunal's order may directly identify the documents to be disclosed by describing them like this:
"Mr Smith must disclose all title deeds for 12 Park Road which are or have been in his control"
or the court/tribunal may identify the documents to be disclosed indirectly by reference to an issue in dispute:
"Mr Smith must disclose all documents which are or have been in his control relevant to the existence and route of the driveway between 1941 and 1982"
Complying with an order of the latter type obviously requires more thought (than complying with an order or the former type) because it could involve many types of documents - deeds, photos, letters etc. - and consideration of what inferences can be drawn from them either singly or in combination.
You may be wondering whether you can ask a barrister to carry out disclosure of documents for you. The short answer is No. A barrister can help by advising that a particular document is relevant, is not privileged, and therefore should be disclosed. A barrister can advise you that a documents is privileged and that you should claim privilege so that you do not have to produce it. And a barrister can advise you that although a document is privileged it would be in your interests to "waive" (give up) privilege and disclose it so that you can use it. But a barrister cannot tell you that a document is definitely irrelevant, so you yourself have to decide that.
When a barrister writes an Opinion after considering a number of documents, it will be apparent from that Opinion that (a) some documents support your case. The Opinion may also consider (b) some other documents which apparently do not support your case, and and give a view, taking all things into account, what the chances of success are. If the barrister does not consider a document relevant at all (c) then it will probably not be mentioned in the Opinion at all. However if a document (d) initially seems relevant but upon due consideration the barrister concludes that, despite initial appearances, it is not relevant after all, the Opinion may mention that with a brief explanation. It is also possible that the barrister may consider a document (e) relevant but, because there are other more significant relevant documents, not mention it - an Opinion gives an overall view concentrating on the most significant matters and is not intended to be an exhaustive commentary on every document.
From such an Opinion you could see that (a) and (b) would be documents to be disclosed, but it does not tell you whether (c) and (e) are relevant and need to be disclosed or not - this is something you have to decide. The Opinion also does not tell you definitively that (d) is irrelevant. This is because, although the barrister concluded that it was not relevant, that conclusion was only based on the material which they were considering when writing the Opinion and it is possible that in the light of other documents which you may find (or which may be disclosed by the other side) it could turn out that the document might be relevant after all. The following example illustrates why this might be so.
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 tell you if a document is relevant and should be disclosed, or that a document is privileged, a barrister cannot tell you definitely that a (non-privileged) document is definitely irrelevant and so does not need to be disclosed. This is because - as explained above - a document which seems neither to support nor undermine any party's claim or defence may in fact do so when seen in the context of other documents. So only you, who are aware of all the documents, and know what searches you have carried out, are in a position to determine that a document need not be disclosed, and in a position to sign the disclosure statement confirming that you have complied (and will continue to comply) with your disclosure duty.
As well as identifying the documents to be disclosed you need to scan them in (if on paper), load them to Bundledocs, and produce a Disclosure List. Some information pages on disclosure which I provide to my clients can be found here. Please note that these information pages are designed only to be used by my clients in conjunction with specific advice about the disclosure orders made in their individual case. They should not be relied on by anyone else and the link is provided only so that you can get a general feel of what may be involved at the disclosure of documents stage to help you decide whether you need to engage a solicitor to deal with disclosure of documents for you rather than do it yourself.
Printing and scanning
Although PDFs are increasingly used in legal proceedings, there are always some documents which need to be printed, normally because the court/tribunal rules require it. This means that you need to be able to print documents, and to scan in documents which you receive in paper form. Your printer/scanner needs to be of good quality and capable of printing and scanning A4 and A3 in colour because there will invariably be some colour documents such as photographs or colour-coded plans. For high volume printing where you have a numbers of days notice, you can use a reprographics shop but even if you do that for planned bulk printing (or bulk scanning) you will need you own printer/scanner at least for lower volume/urgent use - such as when an urgent application is made to the court/tribunal. The cost of good quality "all in one" printer/scanners is coming down all the time and you can buy a combined scanner and printer, which can scan and print double-sided, A4 and A3, for less than £200. When buying a scanner/printer make sure that the scanner has a double-sided automatic document feed (ADF) as you may find that many of the documents you need to scan in are printed on both sides, and it should preferably have two paper trays so that you can load A4 paper in one and A3 paper in the other.
Scanner/printer shown above is a Brother MFCJ6930DW
Email and Word Processing
You will, of course, need to be able to carry out the basic range of ordinary office activities including creating and editing text documents using Microsoft Word, saving a Word document as a PDF, sending and receiving emails, and using websites - e.g. signing on to websites such as Bundledocs and loading documents to them or downloading documents from them.
Legal proceedings (including any formal pre-litigation steps such as making an application to the Land Registry) can last a year or more. Before the court or tribunal fixes the date of a trial (or other hearing where witnesses will give evidence) it will normally ask the parties for any dates of unavailability of witnesses, of the parties themselves, and of their counsel, before fixing the date, and will normally give a least a month's notice of the date once it is fixed. However there may be other events in the course of litigation, such as an interim hearing without live witnesses, or a requirement to file an interim application for a procedural order, or a requirement to file a response to an interim application, before a deadline, the times of which cannot be so easily predicted. Sometimes timescales can be quite short so you need to check your email and post every business day. If you are going away (other than just at a weekend or during a public holiday) you still need to be able to check and deal with any communications from the court/tribunal or from the other side. This means that:-
- Whenever you go away you should take your phone with you so that you can check emails. Ordinarily you would check for emails once every business day but once you receive any email indicating that some issue has arisen you will, of course, from that point onward, want to check more than once a day as appropriate.
- If you are going away for more than one business day (i.e. for more than two consecutive nights) you need to take a computer with you so that you can carry out all the normal computer functions (you can "tether" it to your phone or use local wifi if secure).
- If you are going away for more than two business days you will need to arrange for someone to check your post and scan in, and email to you, anything received about the case so that you can deal with it while you are away.
The computer you take with you needs to be a full-function computer with access to your files (not an iPad). It could be a traditional laptop. If you do not currently have a laptop and so will need to buy a portable computer of some kind, consider buying a Surface Pro (or Surface Go). These are full-function Windows computers but in tablet form and so compact and lightweight and suitable for travel. They have an attachable “type cover” which is a hardware keyboard for fast typing on the move, and they also have the usual computer sockets so that, when you are back home, you can plug in a full-size monitor and use a full-size keyboard and mouse and use the Surface just like a desktop computer. I should add that it is not my role to advise you which computer to purchase - I simply mention this as a possibility for you to consider (alongside any alternatives you find) in case you are not already aware of the Surface Pro.
Filing formal Documents
In centuries gone by anybody starting a court case, or responding to a court case, had to first attend a short hearing before a judge. At that hearing they would be represented by a barrister to "plead" their case in legal terms - i.e. formally state the legal points that their claim, or defence, was based on - but they themselves had to be physically present as well (albeit in some cases they could send someone with power of attorney in their place) to confirm that they were taking the formal step of starting a claim, or admitting or defending a claim.
These days the formal pre-trial steps in a tribunal or court case, such as initial "pleadings" and declaring the relevant documents which you have, are taken by "filing" formal signed documents by uploading them to a court/tribunal website, and even if the court/tribunal is one which does not yet have a website to which documents can be uploaded so that paper documents have to be delivered, they are delivered to administrative staff at the court/tribunal office rather than being handed up to a judge in a courtroom, though some of the terminology still in use reflects the former system in that, for example, when a defendant, on receipt of a Claim Form, files an Acknowledgement of Service form, it is still sometimes called "entering an appearance". Even if it no longer involves an appearance before a judge each decision to take a formal step in litigation (such as starting the case, filing a Defence, or making an Interim Application after the case has started) is still important and these steps are required to be done by you personally and there are certain rules about how they have to be done.
The rules about how formal documents have to be filed are designed to reduce the scope for disputes about whether and when a document was filed. A document may have to be filed by a deadline so certainty is important. You can ask your barrister to advise you about the rules which apply and, of course, to draft the formal documents themselves, but you have to do the formal act of "filing" which might involve uploading PDFs to the court/tribunal computer system (after printing out, signing, and scanning in any documents which require your signature) or emailing them to the court/tribunal as attachments, depending on what is required or permitted.
Any document provided to you by your barrister for you to file will, of course, be provided in unsigned form, normally as a PDF but sometimes as a Word document (for example if you are a company your barrister may provide you with a covering letter in Word form so that you can insert your company letterhead in it before printing and signing). Some documents to be filed may not require a signature but for those which you do need to sign it is, of course, very important that you scan in the document after you have printed it out and signed it, and that you are careful to file the signed copy. If you are filing by loading or emailing (where allowed) you will, of course, have to scan in each signed document as a PDF before you can email or load it. If you are filing documents in paper form, however, you have to take care to remember (and this is very important) to scan in the signed copy of any documents requiring signature before the signed paper copy passes out of your hands when you send/deliver it to the court/tribunal office, so that you retain a PDF a copy of exactly what you filed.
Visiting the Court/Tribunal Office
In theory you don't have to visit the court or tribunal office to start a claim because you can use post (where permitted) or electronic systems/communication (where permitted) but, even so, you may well still need to visit the court/tribunal office later on in the process to deliver hardcopy files of documents ("bundles") for a specific hearing. In theory this can be done by post but sometimes the timescales and logistics mean that hand delivery to the court/tribunal office is needed.
Producing and delivering hearing bundles to the court/tribunal office
A Bundle is an organised collection of documents in a ring binder or lever arch file (or perhaps several lever arch files if it contains a lot of documents). Every page has a page number and the judge and each party at the hearing have identical copies of the Bundle. A Bundle will have an index at the front, listing every document in the Bundle with its page number.
If you engage a barrister to represent you at a hearing then, depending on the scope of the work the barrister has agreed to do, the barrister may assist you in producing the Bundle in PDF form, but you will need to do the work of adding document references to the margins of witness statements in the bundle (necessary for most Trial Bundles) printing (making sure that pages are printed on the correct size paper A4 or A3 etc.) assembling and delivering copies of the Bundle to the court/tribunal office, and to the other party, in advance of the hearing.
Providing you have sufficient notice (sometimes interim application bundles have to be produced urgently) you can use a reprographics shop to do the actual printing but you will still need to do work such as adding document references and ensuring correct page sizes, assembling the bundles (or at least finishing off the assembly of the bundles) and posting/delivering them.
Service of formal Documents
The rules of the particular court/tribunal may require that any document you send to the other party by post has to be sent by First Class post and, of course, there are rules about what is a valid address to send it to, and about how soon you have to send a document, if using post, in order for it to be counted as arriving by any deadline set by the rules.
The rules about how formal documents have to be served (by you and on you) are designed to reduce the scope for disputes about whether and when a document was served. A party receiving a document may be required to take certain steps within a fixed number of days so certainty about service of documents is important.
Because of the importance of these formal pre-trial steps, the other party, and the court/tribunal office, has to send formal documents (and, indeed, all communications) to you personally - not to a barrister you engage to advise you - so your own address is given in the formal documents you send to the court/tribunal and to the other side (or is entered by you after logging in to the court/tribunal system) and you, of course, need to check your post/emails and scan in/forward by email to your barrister, anything received which you require advice on. You will need to check you post and your email every business day. If you will be going away for a period at any time during the litigation (litigation can take up to a year or even more in some cases) you need to make arrangements for someone you trust to check your post and scan in and email to you, wherever you may be, any post relating to the litigation. In many courts/tribunals it is possible for you to give an email address as your address for service but you still have to give a physical postal address as well and both the court/tribunal and other parties are entitled to serve documents on you by sending them to your physical address - they do not have to use your email address even if you tell them you would prefer them to. So you do need to ensure that your post is checked at least every other business day, and preferably every business day, if you go away. If you cannot do this then you will need to engage a solicitor who will handle all communications for you.
You may have to serve documents in paper form on other parties if they do not provide an email address for service (they do not have to provide an email address for service and can choose to provide just a postal address). If you are involved in tribunal proceedings and are going away for a period of time to a country outside Europe which does not have a postal service which can reliably deliver to a UK address within 3 business days you need to make arrangements with someone in the UK who can (often at short notice) print out and send documents by post within the UK for you. If you cannot do this then you will need to engage a solicitor who will handle all communications for you. Generally in court proceedings you cannot formally serve documents on other parties by sending them by post from overseas (even from within Europe) because, in most courts, service by post is only valid if sent by a service which provides for delivery on the next business day and postal services from overseas do not generally offer a next business day delivery service to the UK - i.e. in court proceedings even if you post in good time and the document actually arrives in time it may still not be valid service under the Civil Procedure Rules. So for court proceedings if you will be going away outside the United Kingdom you need to make arrangements with someone in the UK who can (often at short notice) print out and send documents by First Class post within the UK for you. If you cannot do this then you will need to engage a solicitor who will handle all communications for you.
Any document provided to you by your barrister for you to serve will, of course, be provided in unsigned form, normally as a PDF but sometimes as a Word document (for example if you are a company your barrister may provide you with a covering letter in Word form so that you can insert your company letterhead in it before printing and signing). Some documents to be served may not require a signature but for those which you do need to sign it is, of course, very important that you scan in the document after you have printed it out and signed it, and that you are careful to serve the signed copy. If you are serving by email (where allowed) you will, of course, have to scan in each signed document as a PDF so that you can attach that PDF to your email. If you are serving documents in paper form, however, you have to take care to remember (and this is very important) to scan in the signed copy of any documents requiring signature before the signed paper copy passes out of your hands when you send/deliver it to the other party, so that you retain a PDF a copy of exactly what you served.
Scanning outgoing correspondence
When you receive correspondence in paper form from the court/tribunal or other parties you will, of course, need to scan it in, but it is also important to scan in outgoing paper correspondence before you put it in the envelope and post/deliver so that you have a PDF copy of exactly what you sent out.
One reason why this is important is that in the later stages of proceedings copies of what has been sent will be referred to at hearings (and included in a hearing bundle). All proceedings involve some kind of dispute between the parties but it is important to avoid unnecessary disputes/uncertainty. If you have scanned in (as a PDF) a signed letter or other signed document before sending it in the post you have an exact copy of what was sent.
Many people think that as long as they have retained the Word document that they printed out that will be sufficient but that is not satisfactory. First of all when you print a Word document the exact layout of the printed page can vary depending what printer you use - the last line of page one, when printed on one printer, may be the first line of the second page when printed on a different printer, so if you print out a Word document and send it out without retaining a scanned PDF copy, when you come to print out the Word copy again (e.g. for use at a hearing) it may actually be different from what you sent out. You might think that this does not really matter because at least all the words are the same even if the layout is different but it creates doubt and concern: it may be wondered whether the copy you later print out is actually a different version with some differences of wording and if you have not made and kept a scanned copy how can you prove otherwise? In addition word processing software such as Word has automation facilities which, if used, can actually result in different words being printed out at different times. For example a code can be used to print the current date so that a later print will automatically print a different date from that on the copy you printed out and sent out. There are also print-time options which can significantly affect the appearance of a print out of a non-PDF document. For example when printing a spreadsheet the print-time options can affect whether a title is printed or whether and how rows are numbered.
Of course, for correspondence you sent out in the past before any legal proceedings were contemplated, you may well have not taken a scanned copy, and if the Word copy is all you have, it can be used as evidence. But once legal proceedings commence (or when you are at the slightly earlier "pre-action" stage when legal proceedings start to seem possible and you are taking legal advice) you do need to take a scanned copy when you send out paper correspondence. Using an actual scanner is ideal but if there is some urgency and you don't have ready access to a scanner you can at least scan using a scanning app on your phone (such as Scanbot) or, if you don't have such an app and don't have time to install one, simply by taking an ordinary photo of each page of the document with your phone. It is unprofessional to fail to do this and sometimes the uncertainty created by not taking an exact copy of what was actually sent can have an effect on proceedings. It can also affect the fees charged by your lawyer if they have to spend extra time querying things with you because initially they are not sure that the copies you have provided them with are exactly what you sent out.
Of course if you print out a PDF document and send it out without writing anything on it at all, there is no need to scan it in because the PDF you have printed it from will already be an exact copy of the printed document which you sent out. You only need to scan:
- documents you have written on after printing (and before sending) such as documents you sign and/or write a date on
- documents you have printed from a Word file, Excel file, or any other type of file other than a PDF
In order to avoid doubt and confusion you do need to scan in all pages of a document you have printed out and signed, including the pages you have not written on, but this should not be burdensome because documents requiring signature (such as court/tribunal forms and letters) normally consist of relatively few pages. Any long appendices or schedules not requiring signature will normally be separate PDFs.
Keeping Track of Deadlines
Throughout the proceedings you will need to keep track of the deadlines the court/tribunal has set and ensure that they are met. Where meeting a deadline is dependent on the work of others such as a barrister, you need to ensure that the barrister is requested, in good time, to do the work, and is provided with all information and documents necessary for them to do so. So, to take a simple example, a Reply to Defence document cannot be drafted by a barrister until the Defence document is available, so if you are the Claimant in receipt of a Defence document you would need to scan in the Defence document, as soon as you receive it from the other side, so that the barrister can see it, agree the barrister's fee and check that the barrister can draft the Reply to Defence document in time for you to then sign it and deliver/post it to the other party for it to arrive by the deadline, and file it at the court office by the deadline.
You will need to decide at what stages to ask for advice.
Drawing up plans
In cases concerning land, if a plan needs to be drawn up showing where a piece of land is, or the route taken by a claimed right of way, etc. you would need to draw up the plan. This is usually done by taking a large scale ordnance survey map in PDF form and using a PDF app such as PDF X-Change Editor (or a free web-based editor such as https://smallpdf.com/edit-pdf - use Shapetools – Polygon – and an opacity of 50%) to mark on it the various features in different colours.
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 is intended to be used only in conjunction with 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 August 2020 Disclaimer