Decoding Disclosure
Disclosure where each party to a dispute is required to show the other side documents which are related to the case. Disclosure is one of the most time and cost heavy aspects of any civil claim, especially in complex cases. The court will generally try to take steps to ensure the scope of any disclosure exercised is reasonable and proportionate.
The disclosure obligation in each case will depend on a number of factors, including the procedural "track" to which the case is allocated (for example, fast track or multi track) and whether electronic documents will have to be disclosed.
What documents must be disclosed?
Both parties to a case have a duty to disclose relevant documents under Part 31 Civil Procedure Rules. Parties must make a reasonable and proportionate search for relevant documents. Disclosure covers both documents in the possession of the parties and documents previously held in their possession. It may also include documents in the possession of a third party.
Each party has the right to inspect documents as long as they provide written notice.
Can I avoid disclosing certain documents?
Documents that are subject to legal privilege, such as communications between you and your solicitor so not need to be disclosed to the other side. Neither do any documents subject to litigation privilege which attaches to documents created for the dominant purpose of actual or pending litigation.
How will my solicitor review documents to decide what is relevant enough to be disclosed?
Reviewing documents can take a considerable amount of time, thus ramping up the cost of litigation.
To do it effectively, your solicitor will put in place:
- strategies to limit the scope of documents to be reviewed
- a review team
- targets for the review team
What is ‘standard disclosure’?
An order for ‘standard disclosure’ means the documents are usually disclosed by serving a list of documents on the opposing party.
The list will reference:
- The documents on which that person relies; and
- The documents which
- Adversely affect their own case
- Adversely affect another party’s case
- Support another party’s case; and
- The documents they are required to disclose by a relevant practice direction
How do I disclose electronic documents?
When making standard disclosure pursuant to the Civil Procedure Rules, a party is now required to disclose electronic documents (e-documents). This includes emails, word documents, spreadsheets etc. This can result in huge amounts of data having to be considered for disclosure.
Standard disclosure only requires a party to make a reasonable search for documents that support their case or adversely affects their own or another's case or supports another's case. The e-disclosure requirements simply widen the scope of "documents" to which a party must give consideration when giving disclosure.
With e-disclosure, this rule balances the duty to disclose information with a consideration of:
- the volume of documents involved;
- the nature and complexity of the proceedings;
- the ease and expense of retrieval of any particular document and
- the significance of any document which is likely to be located during the search.
Disclosure is one of the most complex areas of civil litigation. To find out more, please search for an experienced lawyer on Solicitors Guru today.