Disclosure is the term given to the stage of the litigation procedure when each party is required to inform the other side of the existence of all disclosable documents that are or have been in their possession or control. This may be a lengthy and time consuming exercise in larger cases, and may involve a significant amount of management time.
What type of Disclosure applies?
The type of disclosure that applies will depend on whether a claim is allocated to the ‘multi-track’ (generally more complex or higher value claims) or to the ‘fast ’ or ‘small claims track’ (in general less complex and of lower value).
Parties in the small claims track are generally required to provide specific information and documentation depending on the type of case. Those in the fast track (and those in the multi-track for claims involving personal injury) are generally required to provide each other with ‘Standard Disclosure’. Standard disclosure is no longer the default provision for multi-track claims that do not include a claim for personal injuries (although it is still one potential option open to the court – see below).
What is “Standard Disclosure”?
You are required to disclose:
(a) documents on which you rely;
(b) documents which:
(i) adversely affect your own case;
(ii) adversely affect another party’s case;
(iii) support another party’s case;
(c) documents which you are required to disclose by a relevant Practice Direction.
This duty of disclosure is limited to documents that are or have been in your control.
This means that:
• the document is or was in your physical possession; or
• you have or have had a right to possession of it; or
• you have or have had a right to inspect or take copies of it.
What are the multi-track requirements?
Parties whose cases are allocated to the multi-track are required to:
• produce a ‘disclosure report’ that briefly describes:
– the documents that may or may not exist which are relevant to the issues in the case
– where they are located
– how any electronic documents are stored
– the estimated cost of providing standard disclosure;
– how they would like the court to decide on what disclosure is necessary;
– state which one of the directions the court may order will be sought (see below);
• the report must be verified by a statement of truth; and
• discuss and seek to agree a proposal for disclosure in advance of at the first Case Management Conference (“CMC”).
• parties must also discuss the use of technology in the managment of electronic documents.
The court will then decide on whether or not to agree with the proposal(s) and order that the parties take specified steps based on a menu of possible options. The court can make the following orders:
• dispensing with disclosure;
• disclosure by a party, of documents upon which it relies;
• any specific disclosure for a specific document;
• directions for disclosure to be given by each party on anissue-by-issue basis;
• for each party to disclose documents which may contain information that will advance or damage the case of another party;
• standard disclosure;
• any other order that the court considers appropriate.
At any point, the court may provide directions regarding disclosure. This can include any and all of the following:
• Searches to be undertaken of where, for what, time periods, by whom, and the extent of any search for electronic documents;
• Whether list of documents are required;
• When and how disclosure statements are to be given;
• The format in which documents are to be disclosed;
• Requirements for documents that no longer exist;
• Whether or not there should be staged disclosure.
What constitutes a “document”?
For the purposes of disclosure, a ‘document’ is anything in which information of any description is recorded. The definition is very broad. Information stored electronically has always been included in the definition but the Court now places particular emphasis on the importance of disclosing electronic documents, and parties are required to confirm that they have carried out a reasonable and proportionate search for such documents. This can generate a substantial amount of work for both clients and their advisors. Electronic documents can also include audio and video recordings.
As soon as litigation seems likely, you must stop any routine destruction of documents that might be relevant to the case. This includes the routine deletion of computer records, especially e-mail. Documents damaging to your case must not be destroyed under any circumstances. In some cases, it may be sensible to take images of computers and servers to ensure that documents are preserved.
You should ensure that all those within your organisation who may have disclosable documents are made aware of your disclosure obligations as soon as possible. If you are in any doubt whether a “document” is disclosable you should raise the matter immediately with the solicitor dealing with your case.
All relevant documents should be sought out at the earliest opportunity and the position should be reviewed prior to the stage of formal disclosure.
The search should extend to:
• documents in all your locations
• documents in storage
• all copies of a document
• notes made by all those who attended relevant meetings
• photographs, plans, drawings, video and sound recordings, video and cinematographic film, microfilms, computer tapes and discs, computer printouts, e-mails and their attachments, and diaries (including electronic diaries).
Where possible the original documents should always be made available. The term “document” covers not only electronic documents readily available on computers, Blackberries, PDAs, mobile telephones, smart phones, tablets and other end-user devices, but also those stored on servers and back-up systems, deleted documents and the “metadata” relating to particular electronic files and documents.
You need not disclose more than one copy of a document unless any copy contains a modification, obliteration or other marking or feature on which the party intends to rely, or which supports another party’s case or which could adversely affect his own or another party’s case. In that case the “copy” document is treated as a separate document.
What constitutes a reasonable search for disclosable documents?
When giving standard disclosure you are required to make a reasonable search for documents. Factors relevant in deciding the reasonableness of a search include the following:
• the number 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.
For electronic documents, consideration is also given to:
• how accessible the documents are;
• their location;
• the cost of recovery;
• the likelihood of locating relevant data; and
• the likelihood that documents may be materially altered by the disclosure process.
In certain instances, it may be reasonable to use only key word searches, or not to search all of a given electronic storage system. If possible, this should be agreed between the parties. Parties are required to co-operate at an early stage on e-disclosure. This includes raising any issues concerning searches for and preservation of electronic documents in their control and providing details of the types of electronic documents in their control, the systems on which they are stored, and the document retention policies in operation. This should be done prior to the first Case Management Conference.
If you do not search for a category or class of document on the grounds that to do so would be unreasonable, this must be stated in the disclosure statement contained within the formal document by which disclosure is given (the List of Documents) and the category or class of document must be identified.
Solicitors should be involved in the search for documents from an early stage. Original files should not be disturbed or rearranged.
List of documents
All disclosable documents have to be described in a formal List of Documents to be supplied to the other side. This List will also indicate those documents which you claim are privileged (see further below in respect of “privileged documents”) and those documents which are no longer in your control (and what has happened to those documents).
The other side will in due course be entitled to inspect and take copies of all your disclosed documents except privileged documents. Inspection normally takes place at the offices of your solicitors unless that is impractical. In any event, it is advisable to give your documents, and in particular the originals, to your solicitors for safekeeping.
Continuing obligation to disclose
The obligation to give proper disclosure is a continuing obligation and documents which are found or which come into existence following service of a List of Documents must be disclosed. This duty of disclosure continues until the proceedings are concluded.
If a disclosable document comes to your notice at any time during the proceedings you are obliged to notify every other party immediately. Such documents are normally disclosed to the other party’s solicitors in a supplemental list or by letter.
You cannot rely on any document which you do not disclose or which you fail to permit inspection of, unless the Court orders otherwise.
Privileged documents are essentially those documents that come into existence:
(a) for the purpose of giving or obtaining legal advice, such as:
(i) correspondence between solicitors and their clients; and
(ii) correspondence between solicitors and third parties in connection with the litigation. or
(b) for the predominant purpose of bringing or defending actual or contemplated litigation, such as:
(i) witness statements obtained for this purpose; and
(ii) letters to third parties to gather information for this purpose.
The following will not be privileged, unless they can be brought within the above categories:
• internal memoranda, even if confidential;
• board minutes;
• notes to accounts;
• correspondence with other professional advisers (such as accountants and, often, insurers) or the police or other authorities;
• documents obtained from third parties to provide evidence for your case;
• additional copies of non-privileged documents made for you or your witnesses or lawyers to study.
Care should therefore be taken to ensure that if such documents are created or obtained after proceedings are contemplated or commenced, they contain nothing that could prejudice your case. If in doubt, you should take legal advice before the document is created or obtained.
Requests for documents or other assistance from third persons should usually be directed through your solicitor so that privilege is maintained for such communications. Privilege can be lost if you show privileged documents to third persons.
“Without prejudice” correspondence is correspondence arising in connection with settlement negotiations: such correspondence cannot be produced to the court before judgment, but it is not usually privileged. Please see our guide to The Without Prejudice rule and Part 36 offers for further information.
Use of Documents
Documents and information derived from documents obtained through the disclosure process from the other side must not be used for any purpose other than the litigation in question. This rule applies equally to documents and information obtained as a result of a Court order requiring the disclosure of documents. All members of staff to whom such material may be communicated must be warned against misuse. Misuse could amount to contempt of Court, which could lead to a fine or imprisonment.
Failure to give proper disclosure can also amount to contempt of Court and may have serious consequences, including dismissal of your claim or judgment being given against you.
In some large cases, where the volume of documents warrants it, scanning and listing documents electronically may be advisable but this does not alter the obligation to disclose the original documents.
As a result of the obligations on litigants to disclose electronic documents, it is vital that you have adequate electronic document storage, preservation and location systems in place. Preservation of documents will allow a party to avoid incurring the costs of recovering deleted documents on which it may wish to rely. The preparation of statements of case can be made considerably easier if electronic documents are stored and organised in a logical manner.
Failure to act positively on a request for electronic disclosure may lead to substantial costs penalties.