Separate hearing on the authenticity of the evidence

[ScrumMaster]

Dear LegalBeagles,

Thank you so much for providing your excellent advice to me earlier. Much appreciated!

I have a new question for you.

In my ongoing civil claim there is a dispute between me and the Defendant on the authenticity of the documents he disclosed to me.
These documents are the central piece of evidence for the whole case. I know they are falsified, and I have obtained a forensic digital expert's report confirming it.

This evidence is supposed to be used by medico-legal experts to provide an opinion to the court.
Undoubtly, I cannot submit these falsified documents to the expert, it will result in a wrong opinion which will not support my case.

My question is - can I apply to the Court to have a separate hearing on the autheticity of these documents?
I know there is something called Note to Prove, but I am not sure if this Note is supposed for the main trial. CPR 32.19 is a bit vague on that.
I would need to have the falsification established by the Court prior to involving any expert and incurring a cost.
Basically, if I prove that the documents are falsified, I almost certainly win the case.

So what do I need to do to have this preliminary hearing on the authenticity of the evidence?

Many thanks in advance.

[echat11]

Posted for information -

https://www.civillitigationbrief.com...authenticity/#

[atticus]

In addition to that, you can make it clear to the expert that the authenticity of specified documents is challenged, explaining your reasons for disputing authenticity, and ask him to report on two bases: (a) that they are not authentic and (b) in case the court rules that they are.

[ScrumMaster]

Thanks, ECHAT11, but the information there is connected to the proving of such authencity at the trial.

I am interested in having a hearing on the authencity before the trial and wonder if and how I can do that.

[ScrumMaster]

In addition to that, you can make it clear to the expert that the authenticity of specified documents is challenged, explaining your reasons for disputing authenticity, and ask him to report on two bases: (a) that they are not authentic and (b) in case the court rules that they are.

Thank you so much for your answer.

In fact, this falsification of the central piece of evidence already costed me an Expert Witness.

With a great difficulty, I managed to find a medico-legal expert witness who was supposed to produce the report, but he refuse to address the question of the authenticity, despite me providing the proof and suggesting to either produce two reports, like you wrote, or ask the court for directions.

Instead, the Expert just withdrew from the case, saying that he did not know how to deal with it.
I am devasted and I am about to fail to comply with the court order to produce such report. As a litigant in person, it is almost impossible to find an expert in that medico-legal area. I now applied for a Single Joint Expert, not sure how it will be resolved. The hearing is next week.

[atticus]

The final paragraph appears to point to the answer:

CPR 32.19(1) establishes an important principle, namely that parties are to put their cards on the table well before trial (and, in any event, within the time scale provided by CPR 32.19(2)) so that the parties and the court know, beyond question, whether the authenticity of any disclosed document is a matter in dispute: McGann v Bisping [2017] EWHC 2951 (Comm), per Richard Salter QC sitting as a judge of the High Court. The purpose of this rule is to aid efficient case management and to ensure that there is no trial by ambush.

[atticus]

Instead, the Expert just withdrew from the case, saying that he did not know how to deal with it.
I am devasted and I am about to fail to comply with the court order to produce such report. As a litigant in person, it is almost impossible to find an expert in that medico-legal area. I now applied for a Single Joint Expert, not sure how it will be resolved. The hearing is next week.

Apply to the court for more time, with permission to instruct another expert, explaining the reasons!

[ScrumMaster]

Thank you very much.

What do I need to write in Form N268?

Is the list of the falsified documents and the proof from Digital Forensic expert enough to request a Prove?
I cannot find any information about how to fill this form.

[ScrumMaster]

Regarding the CPR 31.19 (2):

(a) by the latest date for serving witness statements;

does "Witness Statements" refer to the central Witness Statements delivered before the final trial?

[JK2054]

Thank you very much.

What do I need to write in Form N268?

Is the list of the falsified documents and the proof from Digital Forensic expert enough to request a Prove?
I cannot find any information about how to fill this form.

you need to list the ones you don't agree with it or that you don't have and want them to prove
any that you don't fill you are taken to agree as authentic essentially.

[JK2054]

Regarding the CPR 31.19 (2):

(a) by the latest date for serving witness statements;

does "Witness Statements" refer to the central Witness Statements delivered before the final trial?

CPR 31.19 (2)(a) doesn't mention that.

"

31.19

(1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.

(2) Unless the court orders otherwise, an order of the court under paragraph (1) –

(a) must not be served on any other person; and

(b) must not be open to inspection by any person.

(3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing –
"

[atticus]

N268 is a request to prove documents at trial, so that answers that question.

As the form states, you should list the documents you require to be proved. Follow the format used by the other party in its disclosure list of documents.

[ScrumMaster]

N268 is a request to prove documents at trial, so that answers that question.

As the form states, you should list the documents you require to be proved. Follow the format used by the other party in its disclosure list of documents.

Thank you very much.

I have submitted the form with the list of the documents I contend and the brief reason why.

When it comes to disclosure list, there hasn't been a formal one yet, but the Defendant disclosed the documents to me a while ago, as a result of my request.
Then he conviniently destroyed the laptop because it "broke beyond repair", together with the originals of the documents, despite my warning to preserve.
I now requested a Disclosure Statement from him with the signed statement of truth.
It will be interesting to see how this unfolds.

I am so grateful that your website exists, you provided me with a valuable support and advice!