You have a copy of the web page your case depends on: the terms as they stood when your client signed up, or the post that defamed them, or a rival's product claim. The other side's first move is to say that is not what their site said. In civil proceedings in England and Wales, the Civil Procedure Rules (CPR) and the Civil Evidence Act 1995 decide what happens next.
The rules are short and fairly forgiving. The dispute is rarely about whether a web capture can be admitted at all. It is about whether it is authentic and how much weight it carries. This post covers the rules that apply, what a notice to prove changes, and what your evidence needs to show.
Scotland and Northern Ireland have their own rules of procedure and evidence. Everything below is about civil claims in England and Wales.
A web capture is a document
The CPR define a document as "anything in which information of any description is recorded" (CPR 31.4). The Civil Evidence Act 1995 uses the same words in section 13. A screenshot, a PDF and a saved HTML file all fall within that definition. For multi-track claims, Practice Direction 31B adds that an electronic document is "any document held in electronic form".
You will almost always be producing a copy, because the live page is the thing that changed. Section 8 of the Act allows that. A statement in a document can be proved by producing a copy, "whether or not that document is still in existence", "authenticated in such manner as the court may approve". It also says it is "immaterial" how many removes there are between the copy and the original. So it does not matter that the original page has gone. What matters is how you show that your copy is faithful to it.
Is a web page hearsay?
Sometimes, and it matters less than people expect. The Act defines hearsay as a statement made out of court that is "tendered as evidence of the matters stated" (section 1). A capture is often relied on simply to show what a site published on a given date: the terms it offered, or the claim it made. On that definition, that use is not hearsay at all. If you rely on the page to prove that what it says is true, it is hearsay.
Even then, hearsay is not excluded from civil proceedings (section 1(1)). The party relying on it has to give notice (section 2 and CPR 33.2), usually by the date for serving witness statements. A witness statement served in the usual way satisfies that requirement for what it contains.
Authenticity is admitted unless someone objects
CPR 32.19 is the rule that matters most here. A party "shall be deemed to admit the authenticity of a document disclosed to him under Part 31 unless he serves notice that he wishes the document to be proved at trial". The notice must be served by the latest date for serving witness statements, or within 7 days of disclosure of the document, whichever is later.
That has two consequences:
- If you disclose a capture and nobody serves a notice in time, its authenticity is taken as admitted. Its weight and what it means can still be argued.
- If a notice is served, you have to prove at trial that the capture is what you say it is. The notice can arrive at the last moment the rule allows, so the evidence should exist before disclosure, not be assembled afterwards.
If the other side discloses a capture of a page you dispute, the same deadline applies to you. Diarise it when their disclosure arrives.
What a notice to prove does, and doesn't do
Redstone Mortgages Ltd v B Legal Ltd [2014] EWHC 3398 (Ch) shows how the rule works. Norris J held that the party relying on a document challenged under CPR 32.19 "must lead apparently credible evidence of sufficient weight that the document is what it purports to be" (paragraph 57). A notice to prove does not shift the overall burden of proof onto that party. If the challenger's real case is that the document was forged or altered, that "should be set out fairly and squarely on the pleadings" (paragraph 58). It cannot be run as an unpleaded attack on the evidence.
For web evidence, this sets a realistic bar. You do not have to rule out every way a file could have been edited. You do need a credible, specific account of where the capture came from, and it has to hold up when it is tested. "A paralegal took a screenshot at some point last spring" is the kind of account that fails.
The notice rule for plans and photographs
CPR 33.6 covers evidence "such as a plan, photograph or model" that is not in a witness statement, affidavit or expert's report and not given orally. Unless the court orders otherwise, that evidence cannot be received at trial without notice. For factual evidence, the notice is due by the latest date for serving witness statements, and the other parties must have a chance to inspect it and agree to its admission.
A capture that comes in through a witness, as an exhibit to their statement, is the usual route. If it might be put in some other way, give notice under rule 33.6 anyway. Notice costs nothing, and losing the evidence on a procedural point is expensive.
Weight: what the court will look at
Where a capture is admitted as hearsay, section 4 of the Act tells the court to consider "any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence". The factors it lists include whether the statement was made "contemporaneously", whether it "was an edited account", and whether anyone "had any motive to conceal or misrepresent matters".
Those factors are written about statements, but they are the questions any judge will ask of a capture:
- Contemporaneous. Was it made when the page was live, or reconstructed later from memory and a public archive?
- Unedited. Is it the whole page as served, or a crop, a stitched image or a reformatted print?
- Independent. Does its date rest only on the word of the person who benefits from it?
A capture made by your own side will always face the third question. The answer is evidence that does not depend on your word: an independent timestamp, a hash that anyone can check, and a record that shows who held the file afterwards.
What the witness statement should cover
Whoever made the capture, or whoever is responsible for the system that made it, is the natural witness. Their statement should let a sceptical reader follow the capture from the live page to the exhibit:
- Who captured the page, when, and why. Give the date and time with a time zone, and say what prompted the capture.
- The address. Give the address requested and the address finally reached, if a redirect happened.
- How it was made. Name the tool and its version, the browser, and what was saved. A full page is better than one screen.
- What has happened to it since. Say where it was stored, who could access it, and whether anything could alter it. Our post on chain of custody for web captures sets out what to log at each step.
- How to check it. Give the SHA-256 hash of the exhibited file, and any trusted timestamp with the command that verifies it. Our guide to verifying an RFC 3161 timestamp with OpenSSL walks through it.
- Any limitation. If cookie banners were dismissed, video was not saved or part of the page failed to load, say so. A limitation you disclose yourself costs far less than one found in cross-examination.
Give them the file, not only a printout
Paragraph 33 of Practice Direction 31B says that, unless agreed or ordered otherwise, electronic copies of disclosed documents "should be provided in their Native Format, in a manner which preserves Metadata relating to the date of creation". The practice direction applies to multi-track claims. A printout of a web capture drops exactly what makes it checkable: the embedded record of address and time, and the bytes that the hash and timestamp cover.
Disclose the capture file itself alongside any printed exhibit, and keep the original untouched. If the other side can verify the hash and the timestamp themselves, a notice to prove becomes much less attractive.
If the page has already changed and the only copy is in a public archive, the questions are harder. We cover them in Wayback Machine captures as evidence.
Where Archivepanel fits
We built Archivepanel to produce captures that answer these questions without relying on the person who made them:
- A real Chromium browser saves the public page as one self-contained HTML file with scripts removed. A comment at the top of the file records the address requested, the address reached, when the page was opened and saved (in UTC), the viewport and the browser and tool versions.
- A manifest lists the SHA-256 digest of every stored file. As each capture completes, DigiCert signs an RFC 3161 timestamp over the document's digest. Only the digest leaves our service. Anyone can check it with OpenSSL, without an account. It is not an eIDAS qualified timestamp.
- Snapshots are never rewritten, and the activity log records who captured or deleted what, and when.
- You can download the HTML file, the text, the WARC, the manifest and the timestamp token for disclosure. The timestamps page explains how tokens are renewed so they stay checkable.
The free tier holds 100 MB. Scheduled captures, for pages you expect to change during a dispute, are on the paid plan.
Sources
- Civil Procedure Rules, Part 31, rule 31.4, definition of "document".
- Practice Direction 31B: Disclosure of electronic documents, paragraphs 3, 5 and 33.
- Civil Procedure Rules, Part 32, rule 32.19, notice to prove a document.
- Civil Procedure Rules, Part 33, rules 33.2 and 33.6.
- Civil Evidence Act 1995, sections 1, 2, 4, 8 and 13, legislation.gov.uk.
- Redstone Mortgages Ltd v B Legal Ltd [2014] EWHC 3398 (Ch), Norris J, paragraphs 56 to 58, The National Archives.
- RFC 3161, Internet X.509 Public Key Infrastructure Time-Stamp Protocol (TSP).