2. Disclosure I Flashcards
Meaning of disclosure
Disclosure in legal terms refers to the formal process by which each party to a dispute reveals to the other party and the court which documents it has that are relevant to resolving the dispute. This involves listing the relevant documents and sharing that list with the opposing side and the court.
Right to inspection of disclosed document
Once a document has been disclosed, the party to whom the document has been disclosed generally has the right to inspect the document. Exceptions include if the document is no longer in the control of the party who disclosed it, if the party has a right or duty to withhold inspection, or if it would be disproportionate to permit inspection.
Meaning of document
In the context of disclosure, a document refers to anything in which information of any description is recorded. This includes electronic documents as well as physical documents.
Disclosure report
A disclosure report must be filed and served at least 14 days before the first case management conference. It should describe briefly what documents exist or may exist that are relevant to the matters in issue, their location, if electronic, where they are stored, estimate the broad range of costs involved in giving standard disclosure, and state which of the directions under specific rules are to be sought.
Disclosure discussion
Parties are required to discuss and seek to agree on a proposal in relation to disclosure that meets the overriding objective, at least 7 days before the first case management conference or when the court directs. If parties agree and the court considers the terms appropriate, the court may approve the proposal without a hearing.
Disclosure orders a court can make
The court can make various orders regarding disclosure, including dispensing with disclosure, ordering standard disclosure, directing issue by issue disclosure, or requiring specific disclosure from any other party. The court may also give directions about how disclosure should be given, including what searches to undertake and how documents should be listed.
Standard disclosure
Standard disclosure requires parties to disclose documents on which they rely, documents that adversely affect their own case, adversely affect another party’s case, or support another party’s case. This includes documents specified to be disclosed in any relevant Practice Direction.
Duty to search
When giving standard disclosure, a party must make a reasonable search for documents. Factors affecting the reasonableness of a search include the number of documents, the nature and complexity of the proceedings, the ease and expense of retrieval, and the significance of any document likely to be located during the search.
Duty to disclose is limited to which document
A party’s duty to disclose is limited to documents which are or have been in their control. This means documents the party has or had physical possession of, or a right to possession, or a right to inspect or take copies of.
Disclosure of copies
Parties are not required to disclose more than one copy of a document unless a copy contains a modification, obliteration, or other marking or feature that falls under the standard disclosure rules, in which case it shall be treated as a separate document.
Procedure for standard disclosure
For standard disclosure, each party must make and serve a list of documents in a specified format. This list should identify the documents in a convenient order, indicate those for which a right to withhold inspection is claimed, and those no longer in the party’s control. It must include a disclosure statement verifying the extent of the search, acknowledging understanding and performance of the disclosure duty, and must be signed by a responsible person if the party is not an individual.
Disclosure statement
A disclosure statement is part of the standard disclosure process where the disclosing party certifies the extent of their search for documents, their understanding of the disclosure duty, and that they have carried out this duty to the best of their knowledge. This statement must be signed and, if the disclosing party is a company or other entity, the statement must identify the person making it and their authority.
Documents referred to in statements of case
Any document mentioned in a statement of case, witness statement, witness summary, affidavit, or expert’s report must be disclosed and available for inspection, unless specified conditions or exceptions apply.
Inspection and copying of documents
A party has the right to inspect and request a copy of any disclosed document. The disclosing party must permit inspection and provide a copy within 7 days of the request, assuming the requesting party agrees to bear the reasonable copying costs.
Consequence of failure to disclose documents or permit inspection
If a party fails to disclose a document or denies inspection without proper justification, they may not use the document at trial unless the court gives permission. Non-compliance can lead to sanctions including contempt of court if a false disclosure statement is involved.
False disclosure statements
Making a false disclosure statement without believing it to be true can lead to proceedings for contempt of court. This underscores the legal requirement for honesty in the disclosure process.
Inspection of documents mentioned in experts report
Documents referred to in an expert’s report must be disclosed and made available for inspection. If these documents have not already been disclosed, a party may apply for an order for their inspection.
Categories of documents
For the purpose of standard disclosure, documents are categorized into those the party relies upon (supporting their case), those that adversely affect their own or another party’s case, and those necessary for understanding the case. Documents that may lead to a train of enquiry that could either advance a party’s case or damage another’s are also included.
Redactions
Redaction of irrelevant material from documents is permitted under specific rules, particularly where it does not affect the relevance or materiality of the remaining parts of the documents. Redactions must be carefully done to ensure that no relevant parts are obscured.
Specific disclosure or inspection
Specific disclosure or inspection may be ordered by the court when it is necessary to resolve the case fairly. This includes disclosing or inspecting documents that a party has initially not disclosed or permitted to inspect due to claims of disproportionality or irrelevance.
Order for specific disclosure
Specific disclosure orders may require a party to disclose specific documents or classes of documents, carry out a search to the extent stated in the order, and disclose any documents located as a result of that search. This type of order is given when standard disclosure is insufficient to cover relevant documents necessary for fair resolution of the case.
Timing of application for specific disclosure or inspection
Applications for specific disclosure or inspection can be made at any stage of the proceedings. However, the timeliness of the application may affect its credibility, especially if made close to trial or other critical phases of litigation.
Decision to make specific disclosure order
The decision to grant a specific disclosure order depends on the relevance of the documents sought to the issues in dispute, whether they are within the control of the party from whom they are sought, and if their disclosure is necessary for fair disposal of the case.
Subsequent use of disclosed documents
Documents disclosed during litigation can only be used for the purpose of that litigation, except where the document has been read in open court, the court gives permission, or the parties to whom the documents were disclosed agree otherwise.
