Notice to Admit Facts and Authenticity of Documents

HOW TO USE NOTICES TO ADMIT AS A STRATEGIC LEVER – AND AVOID COSTLY MISSTEPS

In this episode, Fiona Henderson explores the strategic use of Notices to Admit Facts and Authenticity of Documents in litigation. Speaking from sunny Edinburgh, she unpacks how these notices can streamline proceedings by narrowing disputes—especially when facts or documents are uncontested yet expensive to prove. Fiona shares a real-world example involving a contested German contract, emphasising the potential costs of proving authenticity and the importance of tactical decision-making. With insights on cost penalties and best practices, this episode offers practical guidance for people navigating the adversarial landscape of Australian litigation.

 

VIDEO SCRIPT

Over the last few weeks we’ve been looking at some interlocutory steps in litigation. Today we’re dealing with Notices to Admit Facts and Authenticity of Documents. These are quite common in litigation, particularly close to the hearing. They are used by both sides to try and get admissions on important facts and documents that aren’t in the formal pleadings, but which nevertheless form part of the factual matrix needed for your case to succeed. Often these are facts or documents which are not especially contentious but will be expensive to prove.

 

A Notice to Admit Facts and Authenticity of Document asks your opponent to admit certain key facts and/or to admit the authenticity of certain documents within 14 days from the date of issue of the Notice. If a corresponding Notice disputing the facts or authenticity of documents is not served on the other side within that time, then the facts contained in that document or the document referred to are taken to be admitted. If the facts or documents are disputed, then you know that you need to formally prove them.

 

In the case of documents, formal proof of their authenticity can sometimes be a complex process. For example, it can involve forensically copying a hard drive of a computer to establish the metadata of emails or engaging a forensic document expert to forensically examine the authenticity of a signature.

 

In one example, in a major piece of commercial litigation, my German client was put to proof where the original terms and conditions of a contract that was produced were disputed. A key issue in that case was whether original, standard terms and conditions of contract had been incorporated into a contract for sale of equipment.

 

We produced the original initial terms and conditions of contract and served a Notice to admit on the other side shortly prior to the hearing. To our surprise, the authenticity of that document was disputed.

 

We then had to prove the authenticity of the document and the signatures on it. We did this in two ways.

 

First, by getting forensic evidence from an expert as to the authenticities of the signatures on it.

 

Second, by obtaining evidence of the chain of custody of the document from when it was first signed at an International Trade Fair eight years previously, to when the document was produced in the proceedings. We got there in the end, but it was an expensive and time-consuming exercise and it took a lot of careful work to trace each step and prepare the corresponding evidence to prove that.

 

This is precisely the kind of document that it is useful to have admitted because of the cost involved in proving its authenticity. Of course, sometimes there are good reasons for disputing the authenticity of a document.

 

Often, however, sometimes parties simply adopt a default position of simply disputing every fact and every document in the Notice. One of the great benefits of a Notice to admit is the cost penalty. A cost penalty is imposed on a party who unreasonably puts you to the expense of having to prove a fact or a document which should sensibly have been admitted. A penalty of that kind should make you think carefully about how to respond when served with a Notice to it to Admit.

 

There is no getting around the fact that Australia has an adversarial system.

 

For this reason, in every battle, strategic decisions in interlocutory skirmishes need to be thought through very carefully, taking every tactical advantage where possible, yet never losing sight of the end game.