Challenging forged or faked evidence: getting it right

Disputes involving forged or faked evidence – particularly using AI – are set to rise. A recent case, Kang v Freshacre Properties Ltd (Kang), emphasises that allegations of manufactured evidence need to be challenged in the right way. Such allegations must be pleaded explicitly in your statement of case. Failing to do so can lead to costly retrials, wasted legal costs, and significant disruption.

Background

The claimant in Kang alleged that the defendant had breached her duties as a director and sought damages. The defendant denied wrongdoing and relied on two key documents in her pleaded Defence: (1) a Joint Venture Agreement; and (2) a Letter of Gift which she said supported her position. The claimant never filed a Reply disputing their authenticity or alleging that they were forged.

However, at trial, the claimant argued for the first time that the documents were forgeries. The trial judge accepted this, found for the claimant, and was highly critical of the defendant’s inability to explain inconsistencies in the documents.

The appeal: pleading forgery is essential

The defendant successfully appealed the earlier decision on the basis that she had never been put on notice that the authenticity of the documents was in dispute. The High Court held that:

• Forgery must be pleaded explicitly. If a party intends to challenge the authenticity of a document, they must plead it in their Reply or another formal statement of case. Raising it for the first time in witness evidence or oral submissions is not enough.
• A trial must be fair. The defendant was entitled to know the case she had to meet. Because forgery was not pleaded, she was denied the opportunity to properly prepare her defence, obtain expert evidence, or address the issue fully in her own witness statement.
• The court’s decision must be based on properly framed issues. The trial judge’s ruling was based on a serious allegation (forgery) that was never formally set out in the pleadings. This amounted to a serious procedural irregularity and made the trial unfair.

As a result, the High Court set aside the judgment and ordered a retrial, with directions that a Reply must now be filed by the claimant, and both parties must have the opportunity to prepare properly.

Key takeaways

Kang is a clear warning that pleadings set the boundaries of litigation, and a failure to properly plead a key issue can derail a case.

If you challenge a document’s authenticity or the veracity of any other evidence, say so upfront. If a party wants to argue that a document is forged, they must plead it explicitly in a Reply or in response to CPR 32.19 (which deems that a documents authenticity is admitted unless challenged).

Don’t assume a court will allow a late challenge. Even if fraud or forgery becomes apparent late in the case, courts may not allow parties to introduce such allegations at trial if it was not properly pleaded.

For businesses: be prepared if allegations arise. If your company is accused of wrongdoing based on certain documents, you are entitled to expect a clear challenge upfront. If you are defending a claim, check that the pleadings put all key issues in play. Don’t assume you must disprove allegations that were never formally made.

The full case report in Kang is here:

Kang v Freshacre Properties Ltd & Anor [2025] EWHC 487 (Ch) (04 March 2025)

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2025