Obligations for Disclosing Documents in Court Proceedings

Disclosure is a key element of a litigious dispute and failing to comply with the Civil Procedure Rules can create quite the headache. This Article will focus on explaining the rules relating to Disclosure, the consequences of not complying with the rules and how you can ensure you do not breach these rules in the preliminary stages of your matter.

What is Standard Disclosure? Standard Disclosure applies to majority of matters and requires the disclosing of (1) documents which you will be relying on, (2) documents which adversely affect your case, adversely affect another party’s case or support another party’s case, and (3) documents which a relevant rule requires you to disclose.

What counts as a Document? A document is anything which information of any description can be recorded. This could be electronic documents, videos, photographs and information readily accessible from a computer (this could be an external hard drive). This type of disclosure includes documents which are in your control, which includes documents you currently possess and/or documents you once possessed or had the right to inspect.

How much time must I spend locating documents? You must make a reasonable search for all documents requiring disclosure. What is reasonable will often depend on the number of documents, the complexity of the case and the ease and expense of retrieval.

What if I have a photocopy of an already disclosed document? If the photocopy has modification, obliterations or some other mark or feature which is different to the original, then that copy must also be disclosed.

Inspection. A party has a general right to inspect all documents, and if validly requested, must usually be permitted not more than 7 days after the request. However, there are some exceptions which allows you to reject inspection. If the document is no longer in the control of the party who disclosed it or inspection would be disproportionate to the issues, then inspection is not a given right. Additionally, if the disclosing party has a right to withhold inspection then inspection can be withheld on this basis (see below).

When will I or my opponent have a right to withhold inspection? Inspection can be withheld if the document is privileged. This can be because (1) the document is protected because of legal professional privilege, (2) the document would incriminate the party producing them, or (3) the document is privileged due to public policy. Legal Professional Privilege is the most relied upon and can include communications relating to legal advice between you and your legal advisor, between your legal adviser and a third party or between you and a third party, where the document was relating to the litigation.

When does disclosure begin? The Civil Procedure Rules makes it very clear that the obligation to disclose in an ongoing one, even after the list of documents has been served. That means you should always be aware of documents, new or old, which you feel should be disclosed.

What if I fail to disclose something, or entirely? Failing to disclose a document that you wanted to rely on will often mean you cannot rely on it in court, but failing to disclose a document which would harm your case could lead to the whole case being struck out. Furthermore, a false disclosure statement without an honest belief in its truth can result in a charge for contempt of court and a solicitor who acts for a client willing to do this will be forced to remove themselves from the case.