What is the Duty of Disclosure in Litigation?
The duty of disclosure in litigation arises under the Part 31 Civil Procedure Rules which has recently been amended following the Jackson Reforms. Simply put, disclosure is when a party reveals the existence or otherwise of a document to the other party to litigation.
The extent to which disclosure is required depends upon the size and complexity of the case. The disclosure obligations in larger commercial disputes may be agreed between the parties or alternatively decided by a court order. Court orders can range from dispensing with disclosure altogether, to standard disclosure, to any other order the court deems appropriate.
If disclosure is required, parties must file and serve a disclosure report which estimates the costs that could be involved at least 14 days before the first case management conference. The report must contain a statement of truth.
What Must be Disclosed?
Generally parties must make a reasonable and proportionate search for relevant documents. Disclosure covers both documents in the possession of the parties and documents previously held in their possession. It may also include documents in the possession of a third party.
It does not matter whether documents are adverse to the disclosing party’s case; they must still be disclosed.
Documents in this sense refer to any material that is recorded, so may include information held electronically.
Inspection of Documents
The other party has the right to inspect the disclosed documents by giving a written notice to the disclosing party prior to inspection. Copies of the documents may also be requested by the other party and the reasonable costs of providing them may be sought by the disclosing party.
When is Disclosure Made?
Disclosure may be made before commencement of the proceeding by applying to the court and it may also be made during proceedings. The duty to disclose continues until proceedings are concluded.
Where the court is presented with sufficient evidence, disclosure may be ordered against a third person who is not a party to the case.
When Might Disclosure be Avoided?
In certain circumstances where public interest is at stake, the court may prevent disclosure.
Disclosure may also be prevented with regards to documents protected by legal professional privilege such as communications exchanged between a solicitor and the client for the purpose of giving or obtaining legal advice.
Documents protected by litigation privilege such as those exchanged in confidence in anticipation of litigation or for actual litigation may also be prevented from being disclosed. Where a party inadvertently permits the inspection of a privileged document, only the court can allow its use.
Where the documents are not disclosed, the court may still order specific disclosures as it sees fit.
Non-Disclosure of Documents
Where a party fails to disclose a document, that party will not be allowed to rely on it and, where a false disclosure is made, the disclosing party may be held liable for contempt of court.
It is worth noting also that disclosures are usually restricted to the particular proceeding for which they were made.
The duty of disclosure will depend on the circumstances of each individual case; for more information, contact will@osmondandosmond.co.uk or c.dunbar@osmondandosmond.co.uk or by telephone on 0207 583 3434.
