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Control of a document

Where a party is required to disclose documents, he is obliged to disclose documents which are or have been in his control (r 31.8(1)). This covers not just documents in his actual physical possession, but also those that were in his physical possession, documents he has or has had a right to possession of, or documents he has or has had a right to inspect or take copies of (r 31.8(2)). It should be remembered that disclosure involves a statement that a document exists or has existed and so the mere fact that a document has been sent to or is held by someone else or no longer exists does not mean that a party is excused from disclosing it.