At the risk of stating the obvious, documentary evidence can make or break the outcome of a case. Because of its importance (as I’ve outlined below), there is also the potential to save on legal costs – read on!
One of the first things your solicitor will request in connection with any dispute will be all documents relevant to the case. That will be simple enough if there really are not too many documents to consider but in many cases, this will be the beginning of what can become a very lengthy task.
It is important to remember that this must include documents that might prove harmful to your case as well as those that support it. This is crucial to enable the solicitor to properly assess and advise you as to the likely outcome and will affect the strategies to be adopted. In some circumstances, it has the potential to literally determine whether or not you are going to be successful.
What is a document?
Well, they are defined as “anything in which information of any description is recorded”. That includes electronic documents such as email and other electronic communications, word processed documents and databases. It can extend to material stored on servers and back up systems and even documents that may have been deleted but where a record will often remain on the computer system – but there must be a sense of proportionality about this (see below).
Required by law
Another reason for the request is that the law requires it. Your solicitor will do everything possible to resolve the dispute for you at the earliest possible opportunity but if litigation becomes unavoidable (or has already been commenced against you), the parties will at least be ordered by the court to give what is known as standard disclosure. This means that they are obliged to make a reasonable and proportionate search for and disclose to the other party or parties, any documents they wish to rely upon as well as those that adversely affect their own or another party’s case or those that support another party’s case.
Where there are proceedings, the parties will be required to sign a declaration as to the extent of the search and any categories of documents that were not searched for – documents on servers or mobile phones for example. Your solicitor will advise as to the extent of the search required of you.
Your opponents documents
Equally important of course will be the need for your solicitor to advise on the extent of disclosure made by the party in opposition. It may be that an application will need to be made to the court for an order requiring them to widen their search in some specific area where crucially important documents might exist or even to produce some specific documents.
The duty to disclose is ongoing throughout the case if something should turn up later.
Court orders to force document disclosure
There are circumstances where a party can be ordered by the court to disclose certain documents even before proceedings have started and it is even possible to apply to the court for an order forcing disclosure of specific documents by a party who is not even a party to the proceedings!
There is though an overriding principle of proportionality. This is extremely important as otherwise matters could easily get out of hand. Solicitors for all parties to a dispute must keep this in mind. They will normally be expected to discuss with their opposite number the documents they request and to discuss and try to agree the extent of disclosure between themselves without having to involve the court.
I have been involved in cases where many hundreds of thousands of documents have been involved as well as those where just a handful of the proverbial “notes on the back of a fag packet” have tipped the balance of the evidence and influenced the outcome of a case through agreed settlement or otherwise. So, the message is; documentary evidence (or sometimes the lack of it) is going to be crucial – and the tip is; save solicitor’s chargeable time by going through the exercise of making a reasonable search for all relevant documents (good or bad!) and scheduling them in chronological order and/or where a large number of documents fall into a particular category, list them by category. Regardless of all that saving in costs, your solicitor will be delighted!
David Laws. For more information about David and his work, click here.
