Disclosure

In litigation, each side collects their own evidence to prove the facts required to make out the claim or defend it. Disclosure is an important stage in commercial litigation that requires each party to the proceedings to produce documents upon which they rely, and those which affect another party’s case.

Disclosure applies to all documents which are relevant to the issues in the case. These issues are determined by reference to the pleadings. The pleadings include, particulars of claim, defence, the reply (if any) and responses to requests for further information and clarification. The documents to be produced are defined descriptively in the Civil Procedure Rules. They are:

1. documents on which he relies
2. documents which –
   • adversely affect his own case;
   • adversely affect another party’s case; or
   • support another party’s case; and
3. documents which he is required to disclose by a practice direction.

The documents described by the above process is known as standard disclosure, and applies unless the court orders otherwise. A court may limit or even dispense with disclosure, however those would be exceptional cases.

The term ‘document’ takes a wide definition and includes anything upon which information is recorded. As such, a document includes, videos, tape recordings, electronic documents. In fact, any file, or even a file fragment on a hard disk drive is potentially disclosable, provided it meets the test.

Searching

A reasonable search must be undertaken by each party for disclosable documents in standard disclosure. The extent of search depends the number of documents that may be located in a place; the nature and complexity of the proceedings; the ease of retrieval (including cost factors), and the significance of the documents that may be located during the search. Where a party does not search for a class or category of document on the basis that it would be unreasonable, they must include a statement to that effect on the disclosure statement.

It is only those documents that are or were in the control of the party that are subject to disclosure. Thus, if a document was in a party's physical possession, has a right to possession to it, or has a right to inspect it and take copies, it must be disclosed, subject to the requirements of a reasonable search.

General points on the duty to disclose documents:

1. is designed to avoid taking opponents by surprise at the trial, avert the need for adjournments, and allow the parties to properly prepare for the hearing
2. continues up to and during the trial
3. failure to carry out the process properly may lead to penalties being imposed by the court
4. the court may not allow evidence to be used which has not been disclosed
5. confidentiality of itself is no bar to the requirement to disclose
6. documents protect by legal professional privilege are not disclosable
7. documents that would tend to incriminate the party to proceedings are not disclosable.

Disclosure: Procedure

The process of disclosure is usually as follows:

1. each party gathers together the documents for disclose, and prepares their disclosure list and disclosure statement.
2. lists are exchanged.
3. the party makes their documents available for inspection (after a request in writing from the other party). Permission must be given within 7 days of the request. The parties agree to provide copies of the documents appearing in the list, other than those that are protected by legal professional privilege. If documents are made available in this way, the party seeking delivery must pay reasonable copying costs. Further, the court may order documents be made available by electronic means.
4. Where disclosure is incomplete (such as documents missing from the list, that are relevant), a party is entitled to bring an application for specific disclosure.

The following types and categories of documents are usually produced during disclosure:

1. Diaries and diary notes
2. Communications, by letter, email and instant messaging
3. Maintenance records
4. Reports
5. Plans
6. Notes
7. Accounts and accountant’s reports
8. databases
9. back-up systems, where applicable
10. Metadata, where applicable

Specific Disclosure

Specific disclosure is a process available to litigants to remedy defective disclosure on the part of another party to litigation. Applications for specific disclosure (seeking court orders) are usually preceded by written requests for documents to the other parties to the litigation. Failing production of the documents (assuming that the reason for the failure not to disclose is unsatisfactory), an application notice by be filed to apply for a court order requiring the party to produce disclosable documents.

Applications may be made at any time, and during the trial if the existence of the document comes to light then. The order may specify classes of documents or specific documents, and locations where a search should be conducted. An application may be made for any document referred to in a pleading, witness statement, affidavit or expert report. Applications may also be made for specific inspection of documents.

Disclosure List

The form of the disclosure list must identify documents in a convenient order (usually by date, or by category and date), concisely identify the documents and comply with the form prescribed by the Civil Procedure Rules.

Disclosure Statement

The disclosure statement sets out the extent of the search that was conducted to locate documents for disclosure. It also certifies (1) that the person making disclosure understands their duty to disclose; and (2) that, to the best of their knowledge, they have carried out that duty. Where the statement is made on behalf of a company or other legal entity, the statement must explain why the person making the statement is the appropriate person to make the statement.

Use of Documents

Simply because documents are disclosed in the course of legal proceedings, does not mean they may be used for any purpose. The use of documents produced (say in pre-action disclosure applications) may always be limited by agreement.

Documents may not be used other than for the proper conduct of the proceedings. If a party does use or is likely to use documents for an ulterior purpose, that misuse may be retrained by injunction, punished by contempt of court or striking out a claim or defence based on the misused documents.