‘Disclosure’ is the part of the litigation process whereby the parties ‘swap’ documentation relevant to their dispute. It usually takes place once the defence has been filed and prior to the preparation of witness statements.
Disclosure is commonly a time consuming task for both parties and, therefore, in order to manage it effectively, it’s helpful to break it down into parts, namely:
- preservation of documents;
- carrying out a reasonable search;
- disclosure/inspection of the documents in your control; and,
- the consequences of failure to comply with the duty of disclosure.
It is common sense that as soon as a dispute arises, even before formal Court proceedings are begun, you need to collate and keep safe relevant documentation such as contracts, correspondence with the other side, formal/informal notes of meetings; reports prepared internally or even by third parties. However, it is not always easy to tell at the outset of a dispute what may turn out to be relevant; therefore, it is sensible to take precautionary steps as soon as you see a dispute on the horizon.
For example, most organisations have document management policies for electronic data whereby emails are deleted after a period of around six months. This policy would need to be suspended immediately because, where hard copy or electronic documents relevant to a dispute are destroyed prior to the disclosure stage, the Court will make an adverse inference that the information in them was harmful to the party which failed to preserve them.
Wilful destruction of documents is viewed more seriously, as an attempt to pervert the course of justice.
Extent of search
Parties to Court proceedings are obliged to carry out a ‘reasonable’ search for documents. What is reasonable will depend on the circumstances of the case and, in particular, the value of the case and quantity of documentation.
In each case, consideration will need to be given as to how the scope of the search may be limited to make it manageable whilst still complying with the duty. For example, it is common for the parties to agree that documents created before a certain date will not be relevant so need not be searched for. If you can confirm that all relevant documents will be held at your organisation’s main office, or on computers situated there, it will likely not be necessary to look at other company premises.
If there is an extensive amount of electronic data, e.g. emails, database records, spreadsheets, the parties may agree on keywords against which to search. However, unless it is prohibitively expensive, the Court would expect electronic searches to extend to back-up servers and portable devices as well as desktop computers.
Disclosure & inspection
In a nutshell, each party is obliged to disclose to the other:
- any documents which assist their own case;
- any documents which assist the other party’s case; and
- any documents which are neutral but relevant to a full understanding of the issues.
It can seem counter-intuitive to have to hand over to your opposition a document which strengthens his case and weakens your own. However, the aim of the Court rule is to enable the judge to get to the ‘truth’ rather than to allow the parties to pursue the ‘win’ at all costs.
It is usual for the parties to exchange lists of documents and then to request copies of anything on the other sides list which they have not already seen (inspection). The list must detail both documents which are currently in your possession or control and those which used to be in your control but are not anymore. This can be a heavy burden.
Take for example litigation between the developer of a housing estate and a purchaser who alleges his new home has not been built to the required standard.
The developer will need to search for and list: instructions sent to the architect; plans used by the builder; documentation relating to planning consent submitted to the local authority; valuations carried out by surveyors; photographs taken during construction; correspondence and notes of meetings with each of these third parties.
Therefore, as soon as the dispute arose (even before the home owner issued a Court claim) the developer would have been well advised to contact the external organisations involved in the build and ensure that they preserved their hard copy and electronic records.
Privileged documents are exempt from inspection. However, their existence must still be shown on the disclosure statement. Privileged documents include advice between clients and their legal representatives and documents generated in contemplation of litigation.
Failure to comply
Where the claimant or defendant is a company, an individual with a sufficiently senior position and knowledge of the case must sign a statement confirming that he understands the duty of disclosure and, to the best of his knowledge, he has carried out that duty.
The extent of the search, and any limitations on it, must also be explained. It would be contempt of court, punishable by imprisonment, to sign a false statement. If a party fails to carry out a reasonable search the Court will likely order that it does so within a short deadline or its claim/defence will be struck out and the other side will win the case. In order to avoid ‘trial by ambush’, if a party seeks to rely on a document at trial which has not previously been shown to the other side it will need the express permission of the Court to do so.
If permission is granted, it will also be ordered to pay the costs attributable to the late disclosure, which could be considerable if the trial is adjourned. It is important to bear in mind that the duty of disclosure is ongoing. Therefore, if you learn of a relevant document which was not available on the date disclosure lists were exchanged, you must inform the other party of it without delay.
By understanding the extent of the duty of disclosure in Court proceedings, you can take steps to manage it efficiently and take up as little as possible valuable management time.