A client guide to disclosure

Disclosure is where a party to court proceedings discloses to the other party documents relevant to the dispute.

What is meant by ‘documents’

The term ‘document’ has a wide meaning, incorporating all media on which information is recorded. It includes for example not only paper documents, but electronic documents and data including retrievable deleted electronic documents and other media including tapes, videos, and photographs.

Parties only have to potentially disclose documents that are or were in its control, so if:

  • it is or was in the party’s physical possession;
  • the party has or has had a right to possession of the document; or
  • the party has or has had a right to inspect or take copies of the document.

The duty of disclosure

Apart from smaller value cases (generally claims for up to £25,000) or personal injury cases, the court will decide what duty of disclosure should apply in each particular case when it makes a disclosure order.

The following are the types of disclosure order which the court might make:

  • no disclosure - so a party does not have to disclose any documents at all.
  • parties being able to disclose the documents on which they rely and at the same time request any specific disclosure they require from any other party
  • disclosure is to be given on an issue by issue basis
  • each party discloses any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences
  • standard disclosure (where a party is required to disclose the documents on which it relies, and the documents which adversely affect its own case or the other party’s case or which support the other party’s case)

Deciding the disclosure order

The court will want to make a disclosure order that enables it to deal with the case justly, but which is also proportionate to the nature and value of the dispute. To help the court make the appropriate disclosure order in a case, parties are required to give to the court (and their opponents) a disclosure report which:

  • describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;
  • describes where and with whom those documents are or may be located;
  • describes how electronic documents are stored;
  • estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents
  • states which disclosure order the party thinks the court should make.

Parties are required to discuss and seek to agree the appropriate disclosure order before the court decides what order to make.

For electronic documents, parties may also have to agree which categories/sources of electronic documents should be searched, what technology should be used to carry out the search in order to reduce the volume of data to a manageable level, how those documents should be listed and how they should be produced for inspection.

The extent of the search for discloseable documents

Parties to litigation are required to make a "reasonable search" for the documents they are required to disclose. There are a number of factors to be taken into account in deciding the "reasonableness" of a search, such as:

  • the number of documents involved
  • the nature and complexity of the proceedings
  • the ease and expense of retrieval of any particular document
  • the significance of any document which is likely to be located during the search.

For some claims, it may be sensible that a full search should be carried out, whereas for other claims it may better to limit the search. The court can give directions to limit the scope of the search, for example it could specify:

  • what searches are to be undertaken
  • where searches are to be undertaken
  • searches for what documents are to be undertaken
  • the time periods of documents that should be searched
  • who should search for documents
  • the extent of any search for electronically stored documents.

Importance of disclosure

The court takes the duty of disclosure very seriously. The party giving disclosure must give a disclosure statement certifying the details of the search undertaken and compliance with the disclosure duty. Making a false disclosure statement (or causing one to be made) without an honest belief in its truth could lead to contempt of court proceedings.

A party that fails to carry out disclosure properly could face having adverse inferences drawn against it as well as costs penalties awarded against it.

 

This information is necessarily brief and is not intended to be an exhaustive statement of the law. It is essential that professional advice is sought before any decision is taken.

© Stevens & Bolton LLP April 2013

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Richard King, Michael Frisby

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