Those involved in civil litigation may be aware of the duty of disclosure, but not everyone is aware of why disclosure is required (to allow the free exchange of information and to allow the court to make an informed decision), or, how to ensure compliance with disclosure obligations. The following guide will be useful to those who have received an order for disclosure of documents – but if you are not sure on your disclosure obligations, we strongly suggest you take formal advice on the same.
Claimants and defendants to civil proceedings in England and Wales will most-likely find themselves in receipt of an order requiring ‘disclosure of documents’ at some early stage in the court process.
When subject to an order for standard disclosure each party is, broadly, required to disclose the documents relevant to the dispute. This will include amongst other documents, what they rely on, what may adversely affect their own case, and which support the other party's case.
In the first instance, the parties must conduct a reasonable search for documents that are or have been in their control, and then provide a list of these documents to the other side by the deadline in the order.
A reasonable search is one that is appropriate when considering the case, the value of the dispute and the overriding objective of dealing with cases justly. Documents includes anything which records information of any description (CPR 31.4) such as texts, emails, hard copy and electronic documents, material stored on servers and back-up systems, documents which have been deleted, lost or destroyed, and metadata. The duty of disclosure is limited to documents which are, or have been, in a party's control – so in their physical possession, or that they have the right to obtain, inspect or take copies of, from another party (CPR 31.8(2)).
An order for standard disclosure is usually made after statements of case (particulars of claim and defence) have been filed and served, and it will state the deadline for disclosure of documents.
Following disclosure there will normally be a second procedural step, inspection, to allow the other side to inspect and / or take copies of the disclosed documents. The order will dictate when any request to inspect should be made by, and by which date any disclosable documents should be provided. It is possible to refuse to allow inspection or provide copies of some documents – usually privileged documents.
The duty of disclosure, and to preserve relevant documents, continues beyond the deadline given in the court order up until judgment is made or settlement is achieved. So, if for instance documents that should have been disclosed are found after the deadline, that party should inform the other side and, if appropriate, allow the other side to inspect or have a copy of the same.
Standard disclosure is usually given using Form N265, and the list of documents should be divided into three sections – inspection permitted, withheld, and impossible (if no longer in control of that party). The list of documents must also contain a disclosure statement setting out the extent of the search for documents, and certifying that the party signing the statement understands the duty of disclosure and has, to the best of their knowledge, carried out that duty.
The requirement to disclose documents that adversely affect a parties’ own case or supports the other side’s case can seem unfair and detrimental to one’s own position, but disclosure forces the parties to be transparent, upfront and share evidence, which, in the interest of justice and fairness, is beneficial to the overall claim process.
The consequences for failing to comply with the requirements for disclosure are significant and wide-ranging. For instance, failing to disclose a document or wrongfully denying inspection means that party will not be able to rely on that document unless the court says otherwise, there can also be significant cost consequences, and that party’s claim or defence could well be struck out. If a party believes the other has failed to disclose properly then they can make an application for an order for specific disclosure for either specified documents or classes of documents to be disclosed, or, for a further search to be carried out and documents found disclosed.
If you need advice on disclosure or any civil litigation matter, contact [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.