Disclosure of documents

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 Disclosure of documents is a key stage in litigation. Often, it can change perceptions on prospects of success or prompt a tactical review or settlement negotiations. 

We can help with advice on disclosure if you don’t already have a lawyer.

It might seem counter-intuitive but if you are involved in a civil dispute you are required by the Civil Procedure Rules to share information with your opponent.

This includes both documentation that supports your case and documentation that can potentially undermine your case.  The process through which information is made available is known as disclosure.

The disclosure process requires parties to make all documentation relevant to the matter in dispute available.  The ultimate aim of this is to enable the Court to ensure that justice is done.  The thinking being that without all the relevant information, the Court will not be able to achieve this objective.

The mechanics of the disclosure process are set out in Civil Procedure Rule 31 and the Practice Direction to that rule.

There is a set format for disclosing documents under the Civil Procedure Rules (CPR) and claimant and defendant are required to complete a disclosure statement confirming that they understand their disclosure duties and certifying that these duties have been complied with.

Once lists of documents have been exchanged, parties are entitled to request copies of the documents listed or inspection of the originals.

It follows from the above and given how important disclosure can be that in many cases, the issue of whether full or proper searches have been undertaken is disputed by the parties.

The disclosure obligation continues until the proceedings are concluded.

The duty does not simply come to an end once the initial disclosure process has been complied with.  If a relevant document comes to light after initial disclosure, or even if it is created after initial disclosure, it must be disclosed.

Specific disclosure application – where the opponent has failed to provide full or adequate disclosure

If you suspect that a relevant document has not been disclosed by your opponent, you should notify them that you intend to apply to Court for an order for specific disclosure. If this does not result in disclosure of the document in question, you can issue an application.

An application notice much specify the order which the applicant intends to ask the court to make and supportive evidence.

The grounds on which the order for specific disclosure is sought must be set out in the application notice but if not it must be set out in the evidence in support of the application.

When considering whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and in particular the overriding objective. If the court decides that the party from whom disclosure is sort has failed to adequately comply with the obligations imposed under the rules for disclosure, the court will usually make such an order to ensure that their duties and obligations are complied with.

If an order for specific disclosure is not complied with, this may result in your opponent’s case being struck out.

You should think carefully before making this type of application – it is inherently risky and the court may decide you are simply “fishing” for more evidence which supports your side of the case. Contact us if you need advice or an opinion on chances of success or generally.

Requests for documents from parties who are not claimant or defendant –

Non-party disclosure

If you believe that a person that is not a party to the litigation may have a document that will either assist your case or undermine your opponent’s within their control, it is possible to apply to the Court for an order requiring that this be disclosed.

However, whether or not an order for non-party disclosure is granted will depend upon the discretion of the Court. An NPO is a disclosure order which can be made where the third party respondent has been caught up in any wrongdoing (innocently or not) relevant to your claims against the potential defendant.

Privilege

Certain documents can be withheld from inspection on the basis that they are privileged.  The following documents are privileged:

  • Documents protected by legal professional privilege;
  • Documents privileged on the grounds of public policy;
  • Documents that would incriminate the party producing them.
    All communications that are written to or sent by your solicitor in his professional capacity are covered by legal professional privilege and are therefore privileged from inspection providing they were sent for the purpose of obtaining legal advice or assistance.

Communications that your solicitor has with third parties are also privileged from inspection on the basis of litigation privilege if they are both created after the litigation was contemplated and are made for the purpose of giving advice or obtaining evidence in relation to the litigation.

 If you need to deal with disclosure it is important that you have the right legal advice. Darlingtons would be happy to guide you through the process. 

Disclosure – just documents?

Disclosure is not just limited to written documents.  The definition of “documents” under the Civil Procedure Rules extends to “…anything in which information of any description is recorded”.  This includes:

  • Photographs;
  • Tapes;
  • Computer records;
  • Emails;
  • Electronic documents stored on servers and back-up systems;
  • Electronic documents that have been deleted;
  • The information associated and stored electronic documents known as metadata (the data that describes and gives information about other data).
    The above can be daunting and take a lot of time and considerable expense.

 

Proportionality is also part of the rules but the definition of what is proportionate also depends on :-

  • The nature and complexity of the matter;
  • The number of documents involved;
  • The importance of the document; and
  • The ease and expense of retrieving the document.

Entitlement to documents before starting a Court Claim – Pre-action disclosure

Before proceedings are commenced, parties are required by the pre-action protocols to share information.  However, at the pre-action stage there is no general obligation to show your opponent documents that are adverse to your own position.  If you believe that a party may have documents in their possession that you need in order to evaluate the strength of your position, for instance when trying to decide whether you should issue proceedings against them, then you can make an application to Court for pre-action disclosure.

One of the key considerations for the court in deciding a pre-action disclosure application will be whether early disclosure is desirable in order to dispose fairly of the proceedings, to assist the dispute to be resolved without proceedings, or to save costs.

Be aware that such applications are difficult and risky and should be very carefully considered and prepared. An unsuccessful application might well result in a significant costs order and a tactical blow. Get in touch with us if you feel you should get legal advice before taking the risk.

What documents need to be disclosed – Standard disclosure
Standard disclosure, generally ordered as part of directions for a case once it has been issued and a defence filed, requires the parties to carry out a reasonable search for relevant documents which record information that they intend to rely on, or which adversely affect or support another party’s position.  The parties are required to search for all documents that relate to the issues in dispute.  There is no requirement to provide documents that relate to issues that have been agreed.
The duty of disclosure is not limited to only the documents that are currently in your physical possession.  It extends to all documents that are or have been within your control.  This includes documents that have previously been in your physical possession.  It also covers documents that you have or have had a right to possess and documents that you have or have had a right to inspect.  Documents held by your agent, are deemed to be within your control and must therefore be disclosed.