Disclosure and Recent Changes

Disclosure refers to the parties’ obligation to share with the Court, and the other party, documents that are relevant to the issues in dispute. The issues in dispute will relate to liability and quantum, that is to say whether the other party is liable and if the claim has a monetary value, the extent of their liability. Disclosure does not include expert evidence. 

The general rule is that “standard disclosure” must be provided in all claims (except the small claims track). Standard disclosure requires a party to disclose a) all documents on which they will be relying in the litigation; b) all documents that may adversely affect their own case; and c) all documents that adversely affect another party’s case, or support another party’s case.

The vast majority of the cases on which we are instructed are issued in the Business and Property Courts (BPC) which form part of the High Court. The cases issued in the BPC generally have a higher value and will be complex commercial and property related disputes.   If your case is likely to be issued in the BPC, you should take legal advice without delay as the disclosure rules are complex and onerous.

Failure to comply with the disclosure rules can result in severe sanctions being issued by the Court, such as costs penalties against you or, in more serious cases, contempt of court proceedings being brought against you. Legal advice should therefore be obtained early on in your dispute and before issuing proceedings.

1. What has to be disclosed? – In order to comply with your disclosure obligations, you need to understand what must be disclosed.  Parties to litigation are required to disclose “documents”.  A “document” includes anything in which information has been recorded. This includes emails, bank statements, voicemails, audio and video recordings and of course the usual paper documents.

2. Standard Disclosure – Remember that you have to disclose documents that may adversely affect your case, not only those that support it. It may damage your credibility if you do not disclose those documents that may adversely affect your case, as the other side may have evidence that you have them in your possession. It is best to provide these up front rather than be exposed later on and lose credibility with the Court.

3. Do not destroy documents – Once you are aware that you have a dispute, you must take steps to ensure that any potentially relevant documents are not destroyed. For example, if you have internal processes to destroy documents or CCTV recordings after a certain period, those processes need to be frozen until the dispute has been resolved. The other side can obtain a Court order to instruct an expert to investigate the meta data of your computers to reveal what has been deleted or modified and even possibly retrieve it. Destroying documents can therefore be damaging to your case.

4. Commercially sensitive information – The Court will understand that you may be reluctant to disclose commercially sensitive information. Your legal team will advise you how to comply with disclosure obligations and protect business secrets.

5. Reasonable Searches – How Deep? -The disclosure obligation is not intended to be unduly onerous on you. You are therefore only required to carry out a reasonable search for relevant documents. This may include searching through your email inbox, text messages or archived files. Your legal team will advise you on what constitutes a reasonable search in the context of your specific dispute.

6. Narrow the scope of your disclosure – How wide? – You are only required to search for documents that you intend to rely on in proceedings or those which may support or adversely affect your case or your opponent’s case.

7. Consider the other party’s disclosure – If your opponent has a document that will be relevant to the issues in the case, you should keep a note of that and look for it in their disclosure. If the document you were anticipating seeing is missing or you think that the other party has not complied with their disclosure obligations, it may be appropriate to make an application for specific disclosure  (Interim and Summary Judgment Applications – Lupton Fawcett).

8. Disclosure “It isn’t over til its over!” – Keep reviewing whether you or the other side have further documents to disclose, as the passage of time often leads to the creation or discovery of more disclosable documents. The disclosure obligation continues until the last day at trial.

9. Business and Property Courts (BPC) (1) – If your dispute is in the BPC, you will need to give disclosure with the Particulars of Claim and with the Defence. There is also an additional requirement to notify anyone with possession of your documents not to dispose of them. For companies this may include current and former employees or third party agents of the company, such as accountants.

10. Business and Property Courts (BPC) (2) – Disclosure in the BPC is highly complex and requires a considerable amount of work to be done by your legal team that will be reviewed by the Court and debated by the parties at the Costs and Case Management Conference [LINK to ccmc post] and sometimes at a separate disclosure hearing. It is therefore something to consider with your legal team as soon as possible so that the appropriate steps can be taken to ensure compliance with your disclosure obligations.

If you are in the midst of or are contemplating taking legal action in respect of a dispute, contact the Dispute Management team at Lupton Fawcett who will be happy to discuss your matter with you and advise you on the appropriate course of action to take.