Court case: can we demand a copy of defendant's passport?
- Thread starter eteb3
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LLB (Hons) here.
If the defence turns on whether the defendant was physically present in the jurisdiction at a material time, the most direct evidential means of proving or disproving this is indeed the defendant’s passport and associated immigration stamps. However, the right to demand production of such documents is not automatic and must be approached in accordance with the Civil Procedure Rules.
The disclosure regime under CPR Part 31 requires a party to disclose documents that are or have been in their control and which adversely affect their own case, adversely affect another party’s case, or support another party’s case. The obligation is not confined to documents a party wishes to rely upon, but extends to any document falling within that definition. If it is plain that the defendant’s passport contains material relevant to the pleaded issues, it may be caught by the standard disclosure obligation under CPR 31.6. The court has in a number of cases emphasised that the touchstone is relevance to the matters in dispute: see for example Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, as applied in more modern terms to the CPR by Digicel (St Lucia) Ltd v Cable & Wireless plc [2008] EWHC 2522 (Ch).
If the passport is not forthcoming in standard disclosure, you may apply for specific disclosure under CPR 31.12. The court will consider whether production is necessary to dispose fairly of the claim or to save costs, and will balance the potential intrusion into privacy against the probative value of the evidence. The court will not permit a fishing expedition but will order disclosure of classes of documents where there is a real prospect that they will yield material evidence. A properly framed application could therefore seek an order that the defendant disclose copies of the relevant passport pages evidencing entry and exit stamps for the relevant period, rather than the entire passport, as this would address proportionality and minimise collateral intrusion.
An alternative route, should disclosure be contested, is to rely upon CPR 31.17, which allows a party to seek an order for disclosure against a person who is not a party, or for disclosure outside the standard list, if the documents are likely to support the applicant’s case or adversely affect another’s case and disclosure is necessary for the fair disposal of the claim. However, in this case, as the passport is plainly within the control of the defendant, the appropriate mechanism would be either standard disclosure or an application for specific disclosure.
In practical terms, the most effective course is to put the defendant on notice in correspondence that you consider their movements at the relevant time to be in issue, and to request that they confirm and disclose documentary evidence of their absence from the jurisdiction. If they fail to do so voluntarily, you will be well placed to seek an order for specific disclosure under CPR 31.12, with a narrowed request confined to pages bearing stamps or endorsements covering the period in question. The court is more likely to accede to a targeted and proportionate request than to one framed as a demand for the entire passport.
On that basis, the strategic remedy is to proceed in stages: first, seek voluntary disclosure of the passport pages covering the disputed period; second, press the point in the disclosure process under CPR 31.6; and third, if necessary, issue an application for specific disclosure under CPR 31.12, emphasising both the probative value of the evidence and the proportionality of the request. This ensures that your position is robust, procedurally sound, and capable of withstanding objections on the grounds of privacy or overbreadth.
If the defence turns on whether the defendant was physically present in the jurisdiction at a material time, the most direct evidential means of proving or disproving this is indeed the defendant’s passport and associated immigration stamps. However, the right to demand production of such documents is not automatic and must be approached in accordance with the Civil Procedure Rules.
The disclosure regime under CPR Part 31 requires a party to disclose documents that are or have been in their control and which adversely affect their own case, adversely affect another party’s case, or support another party’s case. The obligation is not confined to documents a party wishes to rely upon, but extends to any document falling within that definition. If it is plain that the defendant’s passport contains material relevant to the pleaded issues, it may be caught by the standard disclosure obligation under CPR 31.6. The court has in a number of cases emphasised that the touchstone is relevance to the matters in dispute: see for example Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, as applied in more modern terms to the CPR by Digicel (St Lucia) Ltd v Cable & Wireless plc [2008] EWHC 2522 (Ch).
If the passport is not forthcoming in standard disclosure, you may apply for specific disclosure under CPR 31.12. The court will consider whether production is necessary to dispose fairly of the claim or to save costs, and will balance the potential intrusion into privacy against the probative value of the evidence. The court will not permit a fishing expedition but will order disclosure of classes of documents where there is a real prospect that they will yield material evidence. A properly framed application could therefore seek an order that the defendant disclose copies of the relevant passport pages evidencing entry and exit stamps for the relevant period, rather than the entire passport, as this would address proportionality and minimise collateral intrusion.
An alternative route, should disclosure be contested, is to rely upon CPR 31.17, which allows a party to seek an order for disclosure against a person who is not a party, or for disclosure outside the standard list, if the documents are likely to support the applicant’s case or adversely affect another’s case and disclosure is necessary for the fair disposal of the claim. However, in this case, as the passport is plainly within the control of the defendant, the appropriate mechanism would be either standard disclosure or an application for specific disclosure.
In practical terms, the most effective course is to put the defendant on notice in correspondence that you consider their movements at the relevant time to be in issue, and to request that they confirm and disclose documentary evidence of their absence from the jurisdiction. If they fail to do so voluntarily, you will be well placed to seek an order for specific disclosure under CPR 31.12, with a narrowed request confined to pages bearing stamps or endorsements covering the period in question. The court is more likely to accede to a targeted and proportionate request than to one framed as a demand for the entire passport.
On that basis, the strategic remedy is to proceed in stages: first, seek voluntary disclosure of the passport pages covering the disputed period; second, press the point in the disclosure process under CPR 31.6; and third, if necessary, issue an application for specific disclosure under CPR 31.12, emphasising both the probative value of the evidence and the proportionality of the request. This ensures that your position is robust, procedurally sound, and capable of withstanding objections on the grounds of privacy or overbreadth.
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Very good reply above only thing I would add is, the only time I have ever had my passport stamped over the last 20 odd years is when visiting the wife's father on our yearly outing to Cape Town Ive never once had it stamped anywhere else. I assume though there would be some "electronic digital" foot print left .
One would assume there must be a way for those in a higher office than ourselves to get this data.
One would assume there must be a way for those in a higher office than ourselves to get this data.
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That's pretty pointless - passports are not routinely stamped every time a person enters or leaves a country. And a stamp in a passport can be forged easily. They (like me) also may have more than one passport. You will need actual evidence of their having physically been (or not been) in the UK at the time.
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IMO, ask for it.
It won't be a magic bullet, but it can't harm your case and may help it.
Depending on how flakey/determined they are, they might roll over seeing how thorough you are being. (Thin chance, but a chance)
Whilst it's unlikely to be absolute proof of anything,vit may support your case. In fact failure to provide it may support your case more than the passport itself
It won't be a magic bullet, but it can't harm your case and may help it.
Depending on how flakey/determined they are, they might roll over seeing how thorough you are being. (Thin chance, but a chance)
Whilst it's unlikely to be absolute proof of anything,vit may support your case. In fact failure to provide it may support your case more than the passport itself
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If you hold a UK passport (or other “3rd country” passport) and enter and leave the EU it will be stamped when you enter the Schengen region, and then again when you leave the Schengen region.
This has been (for UK passport holders) since 1st Jan ‘21, when our freedom of movement within the Eu was rescinded due to Brexit.
Later this year (oct 25) biometric data will begin being taken when you enter the Schengen region, meaning stamps will no longer be necessary. However, this is a rolling programme, so some may still be stamped after oct 25.
I have travelled extensively to and from Europe in the last few years, the above is based on both the rules and my experience. I can’t comment on what does and does not happen re passport stamps if travelling to non-EU countries
Edit to add: if your passport is not stamped, particularly when leaving the Schengen region, ask that the official at passport control does stamp it. It is your evidence that you have left Schengen, if you don’t get it you may be turned away at passport control when you try to re-enter the Schengen region as it will seem you have exceeded your 90 day permitted stay in a 180 day period.
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During my last two visits to the United States (2022 & 2023) my passport wasn't stamped on arrival or exit, presumably the photo and biometric data they took on arrival replaced the need for passport stamps. It wasn't stamped in the Republic of Ireland either, being part of the common travel area with the UK. It has been stamped every time I entered and left Schengen since 2021. It depends on which countries you visit as to whether your passport is stamped or not.
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It may be the case that this is a continuation from a different thread, but before getting involved in the question of whether you can demand production of the passport it would help if we knew something about the case itself.
Please can you therefore explain the background, the nature of your claim and the nature of their defence?
It’s important to realise that unless the issue of the defendant being abroad at the relevant time has been specifically raised in the pleadings (each party’s statement of case filed with the court) an application for disclosure is likely to fail, on the ground that the passport is not obviously relevant to any of the pleaded issues.
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