All of us will have clients who routinely accuse their opposite numbers of forging key documents. Some of those accusations may, from time to time, have some merit. But only rarely do litigators avail themselves of the tactical advantages which can be gained by challenging the authenticity of documents in preparation for trial.
Obtaining early inspection
It is often overlooked that a party “discloses” a document by stating that it exists or has existed. This need not be in a formal disclosure statement. There is an explicit right to inspect any disclosed document, and this includes any document mentioned in a statement of case or witness statement (CPR 31.14).
Those with contentious probate experience will be familiar with the requirement of CPR 57 to provide, with their statement of case, a statement of the existence and whereabouts of any “testamentary document”, which includes any will, draft will, instructions for a will, or “any document purporting to be evidence of the contents” of a missing will. This can be an invaluable tool for getting early inspection of key documents.
Parties should ordinarily disclose only the original of a document, unless other copies contain relevant “marks, modifications or features” rendering them a separate document under CPR 31.9. This might include the unsigned draft of a document, or redacted versions, or annotated copies; all of these are individually discloseable. However, where a party discloses a copy of a document, the immediate question must be where the original is to be found.
One often overlooked requirement in the disclosure process is the obligation on a party, where it is aware of a relevant document which has existed but is no longer in that party’s control, to state what has happened to that document in its disclosure statement. Omission to give such an explanation is a breach of the disclosure obligation and potentially renders the guilty party open to contempt or strike out. Where an explanation is given, the giver can be cross-examined on it, and on any subsequent disclosure statements which are inconsistent with it.
A party may prove the contents of a document by producing a copy “authenticated in such a manner as the court may approve” (section 8 of the Civil Evidence Act 1995). There is some spectacularly arcane law regarding exemplifications, examined copies and the like, which is almost entirely redundant. For modern purposes, office copies (created by an officer of the court or HM Land Registry, for example) are always admissible without calling the officer, and certified copies are equally admissible unless there is evidence to impugn the credit of the certifier. Mere photocopies, however, are only secondary evidence of the original and where the authenticity or integrity of the original is in doubt, a party may require the copier or someone who had sight of the original to prove it matches the original document.
Since the introduction of the CPR, a party is taken to admit the authenticity of any disclosed document unless he serves notice to prove it within the specified time limit.
A notice to prove a document must be served either by the date for service of witness statements, or within 7 days of disclosure, whichever is later (CPR 32.19). In the run-up to a busy trial, where additional disclosure is arriving by the box-load, this can be a tough deadline to meet. Nevertheless, where there is any doubt as to the authenticity of a document, a notice to prove is essential, otherwise the opportunity to challenge authenticity is lost and the court cannot rule on the matter, as was held in Nageh v David Game College. An application for relief would probably be required where this is overlooked.
The Commercial Court guide goes further: where a party challenges the date on which a document (or an entry in it) was created, or the author, or any other feature such as to require a witness to be called, that challenge must be raised in good time in advance of the trial (that is, in time for a witness to be called) and the grounds of challenge clearly spelled out in skeleton arguments, otherwise the court may refuse to permit the challenge. This logic applies equally to other divisions in practice.
Remedies for destruction
Of course, where it emerges that relevant documents have been destroyed, the onus is very much on the destroyer to provide a legitimate reason for their destruction.
The key question is whether litigation was in reasonable contemplation at the time of the destruction. If it was, then destruction of relevant documents, whether hard copy or electronic, is not only a breach of the continuing duty of disclosure, but a serious criminal contempt of court for which committal will often follow. See LTE Scientific Ltd v Thomas.
If documents have been destroyed, there are three levels of remedy available:
- Adverse inferences may be drawn by the court: omnia praesumuntur contra spoliatorem (“everything is presumed against he who destroys”).
- The conduct may amount to an attempt to pervert the course of justice (before disclosure) or contempt (after disclosure).
- The conduct may justify an application to strike out, because a fair trial is no longer possible.
Where you suspect the other party might destroy relevant documents, two steps can give a real tactical advantage:
- In your first pre-action letter, invite the defendant to confirm that it has given an instruction to preserve relevant documents, as required by PD 31B. This is essential advice for any lawyer to their client as soon as litigation is contemplated.
- The Electronic documents questionnaire (the bane of every litigation trainee) explicitly asks whether a document retention policy is in place, and is almost always answered in the negative. (For those not on the side of the angels, there are cases where the answer to this question is privileged.)
Of course, the definition of “document” in CPR 31 is far wider than printed paper. It includes anything in which information of any description is recorded, which of course includes computer hard-drives, servers, or cloud storage.
It also includes the metadata attached to electronic files, giving the author, date of creation, date of last modification and other invaluable information which is rarely contained in the printed version. All of this information is discloseable, and can provide the smoking gun which shows a document has been backdated or amended.
It is often overlooked that “deleting” computer files very rarely erases the data from the system, unless the guilty party uses quite sophisticated software to permanently erase it. Good computer technicians can now retrieve data which was believed to be long-gone in relatively short-order. The key is to obtain an image of the relevant drive at an early stage, which can then be explored without interrupting the owner’s use of the hardware. The court has power to order that searches be undertaken using a suitably qualified IT consultant, if needs be.
Of course, forgery is always a question of fact, and quite a rare one at that. But once you have evidence to suggest the other side’s documents are not authentic, the CPR provides an impressive armoury of weapons to challenge authenticity and (more important) to make matters extremely expensive and uncomfortable for the guilty party.