Disclosure In Litigation: What You Need To Know

Jonathan Lea July 16, 2021

Disclosure: What you need to know[1]

What is Disclosure?

Disclosure is a provision of the Civil Procedure Rules 1998 (“CPR”), a term given to the process of offering documents within your control and are material to the issues in dispute. The purpose of disclosure is to make available evidence that can either support or undermine the respective parties’ cases.

When does Disclosure occur?

Disclosure may occur prior to proceedings, as pre-action disclosure. There is no automatic right to disclosure and parties are only obliged to provide disclosure following a court order. If the parties have agreed the scope of the disclosure between themselves, they will still be required to have the court approve the terms that have been agreed.

Disclosure, a client’s duty

There is a client’s duty of disclosure that will continue until judgment or settlement which will include the duty to preserve all relevant documents. As soon as litigation becomes a possibility, a solicitor owes a positive duty to the court by way of informing their client of the client’s obligations:

A duty to preserve disclosable documents
A duty to co-operate throughout the disclosure process
To make a reasonable search for documents
To disclose the documents
To undertake any specific searches for documents that the court may order

Disclosure and timings

Disclosure will usually take place once statements of a case have been served. At this stage, disclosure may be ordered between parties to the proceedings, before proceedings are on foot, and against a non- party. It is important to note that the duty of disclosure is ongoing throughout proceedings.

Procedure for disclosure

Disclosure will not occur automatically and will require an order for disclosure to have been made. The order for disclosure will usually happen at the first case management conference (“CMC”). Prior to the first CMC, both parties will need to agree to the order for disclosure, including the scope of electronic disclosure.

The parties are required to prepare a summary of the matters on which they do and do not agree on, in respect of the disclosure of electronic documents for the submission to court and before the first CMC.

Below is a brief summary of the stages of the disclosure process:

Identifying and preserving the documents
Collecting, processing and reviewing the documents identified as above
Preparing a list of the documents
Inspecting the opposing sides documents
Specific disclosure

Disclosure and documents

What is a “document”?

Under the CPR 31.4, a “document” includes “anything in which information of any description is recorded”. Therefore, material such as tapes, computer records and e-mails will qualify as well as paper. CPR 31.4 expressly states that electronic documents are to be included within the definition of “documents”. “Document” can include information recorded in the document that has been copied by any means and whether directly or indirectly.

Preservation of documents

Existing documents must be preserved that may become relevant to the issues in dispute. Where information is stored electronically it is vital to ensure nothing is altered, deleted, lost or destroyed. Should any ‘alterations’ occur, there may be legal and financial consequences at the stage of the disclosure process. The courts are unlikely to be sympathetic that electronic data cannot be disclosed due to being ‘deleted’.

Withholding parts of documents

During the disclosure process, parts of a document can be redacted if they are privileged or if they are irrelevant and commercially sensitive. Commercial sensitivity and confidentiality on their own are not sufficient grounds to justify withholding disclosure of parts of documents. If there is material that is both commercially sensitive or confidential and irrelevant, the material may be redacted. Should any disclosable documents be brought to the attention of a party after the service list of documents, the party in hand of the disclosable documents must immediately notify all parties.

Inspection of documents

Once each party have exchanged their list of relevant documents to the case, all parties are entitled to obtain either the originals or copies of the listed documents. There will be a time period for inspection set out in the order for directions, made at the first CMC. When reviewing the documents, consideration for what material might have an impact on the case, will be undertaken. The disclosure of key documents may mean that no further steps in the disclosure stage of the action need to be taken, however, the significance of the documents within the disclosure list will not be apparent from inspecting the opponent’s list and therefore there may be no alternative but to proceed to inspection.

Gaps in the opponent’s list

Upon review of the opponent’s list, if there are believed to be any documents that are missing although thought to be in the opponent’s control and which fall within the scope of the order for disclosure, a specific request can be raised. If required, an application for an order for specific disclosure of those documents can be made. However, if there is reference to other documents within the documents that have been disclosed, it does not necessarily mean that the referred to documents therein, should be disclosed.

Specific disclosure

An order for specific disclosure can be made should either party be seen to have provided inadequate disclosure, the court may order the relevant party:

To disclose any additional documents or classes of documents
To carry out a search for additional specified documents and to disclose any documents that are subsequently located as a result of the search

An order for specific inspection can be made in order to permit a party the inspection of a document referred to.

Objective of disclosure

A key objective of disclosure is to enable the court to deal with cases in a justly manner and at a proportionate cost. A party has a duty to disclose their documents, however the possibility that their documents may substantially support the opposing party, could cause a case to settle before disclosure or shortly afterwards. In such an instance, settling would appear ‘realistic’ in the event there would be a minimal chance of success in court.

Misuse of disclosed documents

The disclosed documents should not be used for any other purpose other than for the proceedings in which they have been disclosed. The disclosed documents must not be shown or provided to any persons that are not connected with the proceedings. Anyone who is involved within the proceedings, must also be aware that the disclosed documents should not be ‘misused’ in any way. Misuse of the disclosed documents can amount to contempt of court. However, once a disclosed document has been read out in court or referred to in a court trial, the restrictions no longer apply (unless the court order state otherwise).

Withholding documents

No documents should be withheld, even if they are to be perceived by the party in hand of the documents, as unfavorable. If the documents are relevant to the legal process, they must be shown to the opposing party. Should a party fail to comply, there can be detrimental consequences to the party’s case, as a result of ‘severe’ sanctions imposed by the courts.

14th July 2021

[1] Note This briefing note is not a substitute for specific legal advice on your case. It is intended to provide an overview of the relevant rules. Your solicitor will explain to you the how these rules apply to your case and what in your case is the right thing to do.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.