Disclosure

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Where a commercial dispute arises between individuals, companies or other legal entities, the different sides to the claim will  certainly have a different perspective on the issues in dispute.  These different views and perspective arise from their differing knowledge about what happened, information they may have and direct recollection of facts.

• for commercial disputes to be properly and fairly managed at court, the rules provide that all sides to a claim must notify their opponents as to whatever documents they have in their possession or control.  This is part of the disclosure process.
• this obligation exists even before proceedings are issued and is part of the Pre-Action Protocols which govern different types of disputes. The rule being, if you are going to go to Court then you must come with “clean hands”.

Any party who refuses to disclose any such information or documents may be sanctioned by the Court, may have such information excluded from the proceedings and may have their claim or defence rejected. 

Disclosure types

How does disclosure operate in court proceedings?

Disclosure is a standard direction (or step in a claim) given by the Court. It is known as “standard disclosure”. 

• disclosure always forms part of the process in a Part 7 claim, whether it is a straight-forward fast-track claim or a complex multi-track process.
• in Part 8 Claims, disclosure is not a standard direction.

Once your claim is issued the court will provide for certain steps to be taken by both parties (called “directions”) and one of the earliest directions is for standard disclosure.

Standard disclosure

Standard disclosure requires the parties to disclose the documents on which they rely and any documents that adversely affect their own case or support the other party’s case.  If a party wilfully refuses to disclose a document which is damaging to their case, then this can lead to serious sanctions being imposed by the Court at a later stage.

If additional documents come into your possession after a standard disclosure list has been completed, then there is the requirement to complete and serve on the other party a supplemental disclosure list. 

This ongoing obligation to disclose any document which either supports your case or supports your opponent’s case pervades throughout the Course of all litigation proceedings.

The disclosure pilot scheme

This is a scheme first introduced in January 2019 with changes having been implemented on 6 April 2021 and applies to cases which are in the Business and Property Courts.  The purpose is to make disclosure quicker, more proportionate and tailored to the circumstances of each case.  

Duty to disclose documents, including electronic data

All parties to a claim have a duty to full and frank disclosure of all documents in their control even if they adversely affect their claim. It also includes the legal right to possess, inspect or copy documents held by a third-party professional agent, such as other firms of solicitors, or accountants.

This includes paper documents, computer records and emails. This also extends to electronic material that is not easily accessible, to include electronic documents stored on servers and back-up systems, and electronic documents that have been deleted.

Various documents are protected from being disclosed – this can include

• any repetitive disclosure of documents which both parties already have possession of (and which would waste time and resources printing out or disclosing); and
• any documents subject to a legal (or other) privilege – for example the advice from your solicitor, investigatory correspondence or correspondence with other parties who are joining you in proceedings (often called common interest privilege).

Any offers to settle or otherwise correspondence sent “Without Prejudice” is not disclosable, as these are genuine offers to settle which should be encouraged to avoid litigation.  Similarly, the existence of ADR proceedings and/or mediation (see our webpages on ADR and mediation) and any documents relating to such negotiations are also not disclosable.

Specific disclosure

If you consider a party has not disclosed everything they should disclose, or you suspect there is a document helpful to your case which has not been disclosed, you may apply to the Court for a specific disclosure order.

The Court has the power to make a specific disclosure order at any time during litigation, but these are usually granted after the exchange of Lists of documents has occurred, where one party is refusing either to search for documents properly or alleging documents don’t exist (or if there is a reasonable belief that a document exists which has not been disclosed).

If you have any questions on disclosure of documents in a case – contact our experts today. Claimant or Defendant, we can help.

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