The Dekagram: 9th December 2025

As we prepare for the annual Festive Case Law Update, coming to your screens on Thursday (sign up here if you haven’t already done so), our thoughts have turned to various dastardly and underhand means of conducting litigation. William Dean examines the procedure for challenging documents suspected being forgeries or otherwise inauthentic; most unfestive!

How to Challenge (Allegedly) Fake Documents

Occasionally, in litigation, one party will allege that a document adduced by the opposing party is not authentic. It might be a copy of a driving licence or an insurance certificate in a road traffic claim or business documents in a commercial case. The approach of the court to such an allegation was recently considered by Edwin Johnson J in Ndungu v. SPG Ltd [2025] EWHC 3039 (Ch).

The general rule is found in CPR Part 32.19:

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2) A notice to prove a document must be served –

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

(b) within 7 days of disclosure of the document, whichever is later.

That rule provides that, unless a party serves notice on the other that the authenticity must be proved, that party will be deemed to admit the document is authentic. The cross-heading in Part 32 says “Notice to admit or produce documents”, but perhaps “Notice to prove or produce documents” would better reflect the procedure.

In Ndungu, the claimant alleged that four documents adduced by the defendant, namely the minutes of three meetings and one e-mail, were forged (or inaccurately/falsely amended) to support a false case in the court proceedings.

Edwin Johnson J recognised the difference between a challenge to authenticity and a positive allegation of forgery, referring to Mellor J’s observation in Crypto Open Patent Alliance v. Wright [2023] EWHC 2642 (Ch) that the “concept of authenticity is broad and does not merely refer to whether the document … has been doctored or concocted”. Where an allegation of deliberate forgery is made, that is tantamount to an allegation of fraud, which must be advanced “fairly and squarely on the pleadings”, in the words of Norris J in Redstone Mortgages Ltd v. B Legal Ltd [2014] EWHC 3398 (Ch).

In Ndungu, the claimant had not served notice under r.32.19 or pleaded the allegations of forgery; but the judge found that was not the end of the analysis, because where “the alleged forgery is not a necessary part of that party’s pleaded case”, the “position is not quite the same”. He gave the example of “where the alleged forgery is said to go to the credit of a witness who is accused of having perpetrated the forgery”. In those circumstances, however, the challenging party must set out clearly its case in good enough time that “the challenged party has a fair opportunity to deal with the allegation”.

The claimant did cross-examine the relevant witnesses on the authenticity of the four documents whose authenticity was in issue, and there had been no objection. Accordingly, argued the claimant, it was too late for the defendant to contend that it had had insufficient notice. The claimant relied on the judgment of Jackson L.J in ECO3 Capital Ltd v. Ludsin Overseas Ltd [2013] EWCA Civ 413, in which that judge drew a distinction between a document created on the date, and for the purpose, stated (but with inaccurate contents) and a document created later. He held that, where there had been full exploration of the accuracy of the date of the document in evidence, “it was too late” to place reliance on r.32.19.

Edwin Johnson J considered that Jackson LJ had not laid down a general rule about the inapplicability of r.32.19 where cross-examination on the disputed issue takes place without objection. Rather, it “is a case sensitive question, which depends upon all the circumstances of the relevant case, and upon the question of whether or not it is appropriate for a party to be held to a deemed admission”. Relevant matters included certain factors that were present in ECO3 Capital Ltd, including that there had been no objection, the issue was fully explored in evidence and there had been little risk of prejudice to the opposing party because it was highly unlikely that any other evidence could have been called even if notice had been given under r.32.19.

On the facts of Ndungu, although the defendant accepted that three of the forgery allegations “went only to credit”, the court held that two of them had been inadequately foreshadowed and “it was not acceptable for the serious allegation of dishonesty” to be advanced in the way the claimant sought. It was held to its deemed admissions under r.32.19 in relation to those documents. The other two allegations were considered by the judge on their merits (one having put in issue at the outset of the trial and in correspondence) – but, ultimately, the claimant also failed to establish those allegations.

A party seeking to dispute the authenticity of a document produced by the opposing party should, as appropriate, serve notice under r.32.19 and (if the allegation is one of forgery or fraud) explicitly plead the matter. Doing so will reduce or remove the risk of being held to an unintended admission by default. The law appears still to be developing, with a case-specific analysis applied when the rules are not followed; but that uncertainty can be avoided by proper adherence to procedure.

About the Author

William Dean has a busy personal injury practice involving claims arising from serious injury and death. He regularly advises and appears in cases of factual, evidential and legal complexity, including at trial. He is a contributor to the Butterworths Personal Injury Litigation Service and the APIL Guide to RTA Liability. He also acts in tribunal claims against the Criminal Injuries Compensation Authority, and is a contributor to the leading textbook in that field.