Standard Disclosure in Litigation
7th July 2023
7th July 2023
When a dispute comes to a conclusion before the Court, the Judge will need to determine the case based upon the evidence presented by both parties. Although the Court may hear from witnesses, much of the evidence will be in the form of documents submitted prior to the hearing/trial through the process of disclosure.
The process for proceedings in County Court is governed by the Civil Procedure Rules (“CPR”), the rules that govern how parties and the courts conduct litigation in England and Wales. Part 31 CPR sets out the rules in relation to disclosure and inspection of evidence. We have set out in this article a basic guide to the procedure for standard disclosure.
Disclosure is a key part to any court action as the disclosed documents will form entirely, or a significant part of, the evidence upon which a case will be determined. Disclosure is, therefore, also often an important part of any due diligence to be undertaken prior to allowing a matter to run to trial. It is not at all uncommon that, following disclosure, parties will often negotiate a settlement before trial, as the content of the documents disclosed will colour how the respective parties may feel about the strength of their respective cases. It is, therefore, important for parties to understand their duty of disclosure within proceedings and how the standard disclosure process works.
Meaning of “disclosure”
CPR 31.2 states that “A party discloses a document by stating that the document exists or has existed”.
Meaning of “document”
CPR 31.4 defines ‘document’ as “anything in which information of any description is recorded”. This covers both physical (such as a photograph or writing on paper) and electronic documents (such as emails, text messages, voicemails, video-clips and social networking messages).
The documents to be disclosed - standard disclosure
In accordance with CPR 31.6, as part of the standard disclosure process, a party must disclose the documents which:-
they intend to rely upon as evidence in support of their case;
disadvantage (“adversely affect”) their case;
support their opponent’s case;
disadvantage their opponent’s case; and
a relevant practice direction requires them to disclose.
In accordance with CPR 31.8 (1) the documents that a party is obliged to disclose are limited to those which either are in that party’s control or have been in their control. A document is classed as being in a party’s control or previously in their control if
“CPR 31.8 (2)
(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it”.
The first stage of the standard disclosure process
Identify any documents that are relevant to the issues in the case and preserve these documents;
Conduct a reasonable search for those documents in accordance with CPR 31.7 taking into account the following factors when deciding what is considered reasonable.
(a) the number of documents involved;
(b) the nature and complexity of the proceedings;
(c) the ease and expense of retrieval of any particular document; and
(d) the significance of any document which is likely to be located during the search”.
The second stage of the standard disclosure process
Once the relevant documents have been obtained, each party must compile a list of documents using the standard court form (N265) and sign the disclosure statement contained within this form. The person signing the form confirms as follows:
The list includes all of the documents that the party is obliged to disclose (those which are in their control and those which have been in their control);
They have understood and carried out the obligations in relation to disclosure;
They will inform the Court and all other parties straightaway if further documents, which require disclosing, come to light before the case concludes;
They will state any category or class of document which they will not allow inspection of on the grounds that it would be disproportionate to the issues relevant to the case.
The act of disclosure takes place when the parties formally exchange the list of documents. Once the documents have been disclosed, the parties will likely be able to request to inspect (or be sent a copy of) any document listed (CPR 31.3(1)). The process for inspection of the documents is as follows.
The requesting party must give notice in writing to the other party that he wishes to inspect the particular document(s) disclosed (CPR 31.15(a)).
The other party must allow inspection to take place “not more than 7 days after the date on which he received the notice” (CPR 31.15(b)).
Following the inspection, the requesting party may ask for a copy of the document which the other party must provide to him “not more than 7 days after the date on which he received the request” on the condition that the requesting party pays the copying fees (CPR 31.15 (c)).
It is common for this process to be shortened by the parties merely identifying which documents on the list they wish to see and offering immediately to pay reasonable copying charges at that stage such that the documents are simply sent through to them. This avoids the “inspection” stage.
Continuing duty of disclosure
The parties duty to disclose documents continues until the proceedings have come to an end. Accordingly, where a document which should be disclosed under the rules comes to a party’s attention at any point in the proceedings, that party must notify the Court and every other party straightaway of its existence and its availability for inspection as above (CPR 31.11).
In addition, the Court may order that a party discloses specific documents or carries out a specific search for documents (CPR 31.12).
The parties have a continuing duty to the Court of disclosure and to assist in “the disclosure process”. Disclosure is an extremely important part of the litigation process and the rules in relation to it must be obeyed. Breaches of the rules on disclosure may give rise to adverse orders affecting the ability of the offending party to rely on certain evidence or that it pay costs to their opponent no matter the final outcome of the case. A litigant would be wise to seek competent advice before embarking on any litigation but certainly in relation to the specifics of the court rules once litigation has commenced.
For more information, please feel free to contact a member of the team on 01435 897297 or firstname.lastname@example.org.
This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above. The Legal Update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.
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