Disclosure is essentially what it says on the tin. It is one of the stages of litigation where each party is required to reveal what documents they have in their possession that are relevant to the dispute (whether those documents help or hinder that party’s case). This usually occurs after the parties have set out their respective positions in their statements of case and puts all the cards on the table.
The Court will normally order disclosure to take place; the extent of the disclosure will be proportionate to the size, nature and complexity of the case.
The ‘standard’ disclosure is that parties must disclose documents in their control on which their case relies, that adversely affect their case, which support the other party’s case and ones that are required to be disclosed by a relevant practice direction. Parties to a dispute must ensure that all relevant documents are kept and do not find their way to the shredder.
A document is not limited to only paper originals, it also extends to electronic documents such as emails, audio files, personal organisers and hard drives; this includes the metadata such as the creation date, original authors and blind copy recipients.
There is a set mechanism for how documents are to be disclosed and the parties must submit a statement confirming that they properly understand the disclosure duties and certify that they have complied with the duties.
Having disclosed the existence of a document, an opponent is then entitled to inspect it if it wishes to do so. Normally, that occurs by the provision of a copy of the document concerned.
Commercial sensitivity or confidentiality, on their own, are not sufficient reasons to withhold documents from disclosure and inspection. The only time a document can be withheld from inspection is if a document is privileged.
The existence of certain documents will need to be disclosed, but they can be withheld from inspection by the other side. These are referred to as privileged documents.
There are various forms of privilege, including legal advice privilege, litigation privilege and without prejudice privilege. Under these heading, documents that can be withheld include things such as advice from solicitors, confidential documents created for the purpose of litigation and correspondence made in genuine attempts to settle the dispute.
However, whether or not a document is privileged is a question of substance over any particular form. Marking something as ‘privileged’ will not make a non-privileged document privileged; similarly, not all communications with solicitors will benefit from being privileged.
Top 5 Practical Tips
- Think about disclosure early. Gather all hard copy documents that could be relevant to a dispute.
- Consider your document retention policy. The destruction of relevant documents may have serious consequences (including potentially being held in contempt of court).
- Don’t disclose privileged documents to third parties. Documents circulated too widely may risk losing their privilege.
- Take disclosure seriously as it can affect the outcome of the proceedings. Not disclosing documents, losing documents or destroying them will likely result in a loss of credibility.
- It is important to remember that the duty to preserve and disclose documents is a continuing obligation. The duty exists until the there has been judgment or the case has settled, meaning that documents which come to light after a case has started, or after disclosure has already occurred, must still be disclosed.