Disclosure can be one of the biggest burdens during litigation proceedings. When litigation spans several years, the thought of having to collate every single document of relevance, whether it helps your case or not, can be daunting. But what exactly needs to be disclosed? When will they need to be disclosed, and what happens for documents that are only produced (or found) last minute?
Part 31
Part 31 of the Civil Procedure Rules provides the primary guidance disclosure in the Courts, save for in Small Claims. Part 31.6 states that a party is required to disclose only:
- the documents on which he relies; and
- the documents which –
- adversely affect his own case;
- adversely affect another party’s case; or
- support another party’s case; and
- the documents which he is required to disclose by a relevant practice direction.
This effectively encapsulates all documents which are relevant to the proceedings. It is therefore vital that Client’s are warned as to their obligations with retaining and preserving documents (including documents as defined in CPR 31.4).
“Standard” Disclosure will usually be dealt with in several steps. The partes will first exchange their list of documents, which identify what documents they currently possess, which documents are available for inspection, which documents they will not permit to be inspected, and documents that were once in their possession but no longer are (and what has happened to those documents). The lists contain a “disclosure statement”, which certifies that the parties (and their legal representatives) have undertaken specific searches for documentation. It is insufficient for parties to merely list what they have to hand.
The next stage, often called “Inspection”, allows the parties to request the documents provided in their respective lists. Documents that are referred to in Statements of Case, Witness Statements, or an affidavit are almost always available for inspection.
Failure to disclose a document or permit inspection (unless the Court permits such) will result in the party being unable to rely upon said document. Proceedings of Contempt of Court may be brought against a person who makes a false disclosure statement.
Early Disclosure
In order to resolve litigation without the need for formal proceedings, it may be advisable to provide documents relevant to the matter before instigating proceedings, often alongside a Letter Before Action.
A Pre-Action Disclosure application may also be made before proceedings are begun. This may occur when a prospective Claimant requires information in the prospective Defendant’s possession, which may prove decisive in the case. Assuming that no other method of obtaining this information is available (such as Freedom of Information requests, or subject access requests etc), then a Pre-Action Disclosure application may be necessary.
Business and Property Court
If your matter is within the Business and Property Courts, then the disclosure rules will be different to those set out above and in Part 31. Instead, Part 57AD governs disclosure here, where the stages of disclosure are significantly different.
When serving Statements of Case, an “Initial Disclosure List” must also be served. This list is to detail the documents relied upon (expressly or otherwise), and any other key documents that are required to understand the case presented. Parties may dispense with the need for Initial Disclosure or the Court may order that it is not required. What is perhaps key here – is that adverse documents are not required to be disclosed during Initial Disclosure (PD 57AD 5.4(3)).
Should either party be dissatisfied with Initial Disclosure, they may request “Extended” Disclosure within 28 days of the service of the final Statement of Case. There are then 5 different “Models” (A-E) for the disclosure that they are seeking – which can vary from specific adverse documents (Model A), to a full search of all documentation (Model E). Given the complex nature of many cases in the Business and Property Courts, Model E is saved for exceptional cases. A List of Issues for Disclosure will be prepared by the aggrieved party, which will set the scope of what it is they are seeking.
The Business and Property Courts operate in a very different way to the County Court, and due to the substantially more complex CPR provisions, extreme care is needed to ensure you do not prejudice your Client inadvertently.
Alternate Models
It should be noted that the Court can give directions for Disclosure that do not necessarily fit within the ordinary structure of the CPR, such as in Judicial Review Proceedings or the Court of Appeal. Any Order made by the Court should therefore always be thoroughly inspected and no assumptions made.
At Dyne Solicitors we specialise in Litigation and Regulatory Disputes. We offer advice and representation for regulatory, commercial and property litigation – in the environmental and waste sectors.