Disclosure of documents: As part of every litigation case, one of the “directions” that a Court will issue (i.e. a formal step the parties are ordered to take in a Court case in order to prepare for trial) is disclosure of documents. The idea behind this is that all parties should be aware of the documentation that is available and relevant to the matter and to ensure that neither party is taken by surprise in the tactical production of documents at some later stage.
This is done by the preparation of a formal list of all the documents. We will prepare that for you.
It can often come as a surprise to parties to learn that they are even required to disclose documents that harm their case and/or which assist the other side’s case. Also, that the obligation is a continuing one – so if any documents are produced later, these are subject to disclosure too as are any documents which turn up having been lost or mislaid.
Disclosable documents that you may have must be actively searched for, though you may limit your search to what is reasonable in terms of effort and cost and this will depend on the document’s important to the key issues in dispute.
The list must also indicate:
- those documents in respect of which the party claims a right or duty to withhold inspection (e.g. if it is legally privileged – this would be advice between a lawyer or other expert and his client for the dominant purpose of this sort of contemplated dispute or if disclosure would damage the public interest);
- those documents which are no longer in the party’s control and an explanation of what has happened to those documents.
Disclosure can also include documents that are held by someone else (a third party) who would be obligated to give them to you or let you inspect them or have copies of them if asked – such as your accountant.
This disclosure process can arise even before a formal claim starts (pre-action disclosure) where a potential party needs access to documents in order to decide whether to actually start a claim.
Soon after disclosure there is “inspection” whereby one party can ask for a copy of the identified documents.
What is a “document”?
Anything in which information of any description is recorded is subject to the disclosure rules.
This means that a document can include pictures, emails, mobile phone texts, social networking messages, video-clips, and other similar material. It also includes the “meta data” of any electronic documents which includes the date it was created, modified, the GPS location of any photographs taken, who created the document, whether the document has been altered or enhanced etc.
A copy in relation to a document means anything onto which information recorded in the document has been copied by whatever means, whether directly or indirectly.
The list must also include a disclosure statement. This must be signed by you and cannot be signed by your lawyer on your behalf. This is a statement made by the party who is disclosing the documents which:
- sets out the extent of the search that has been made to locate certain documents which he is required to disclose;
- certifies that the person understands the duty to disclose documents;
- certifies that to the best of his knowledge he had carried out that duty.
A breach of this disclosure statement is a serious matter and can lead to a finding of contempt of court in serious cases – which could lead to fines or even imprisonment. Needless to say, a breach will also have serious consequences for the case itself.
If we have sight of a key document – even if it harms your case – we are professionally bound to disclose it to the other side. If you instruct us not to disclose it we may be forced to decline to act for you further.
A party will not be allowed to rely on any document which s/he fails to disclose or in respect of which s/he fails to permit inspection unless the court gives permission.
Specific disclosure or inspection
Specific disclosure or inspection deals with the situation where the court makes an order for specific documents to be inspected. This will often be on the application of one party who feels that the disclosure they have been given is inadequate.
What you need to do
Please gather together all documents relevant to the claim or matter and deliver these to us. We will very likely scan all of these to your file and return originals to you. Be sure to keep all originals in a safe place and do not dispose of them.
If you do not have all the documents available, then take steps to track them down. Go through computer and phone records if relevant and safeguard any documents, evidence or other data that may be relevant.
For more information or advice on Disclosure, please contact:
Kent Reynolds, Litigation Solicitor
SO Legal Solicitors Eastbourne – 01323 407555
SO Legal Solicitors Brighton & Hove – 01273 069920
SO Legal Solicitors Uckfield – 01825 729840
SO Legal Solicitors Notting Hill – 0203 9677700