Disclosure of Documents
All parties in a case will be obliged to disclose all documents in their possession which relate and are relevant to the issues in dispute. This includes not only paper documents but also anything in electronic, video or audio form. It is an important obligation which must be taken seriously, as it will go hard on a party who has failed to disclose or attempted to hide a relevant document. The obligation continues to the end of the case, and if anything comes to light subsequent to formal disclosure you must tell the other side and the court. Disclosure of documents will be ordered early in a case and can be given using Form N265. You will be required to list and identify each document which are in your control or possession, and set out separately any which are privileged or which you no longer have. The list must be confirmed by a disclosure statement as to its truth, filed with the court and served on the other side. You must therefore carry out a search for any documents relating to the dispute and list them in chronological order. These must include the documents you intend to rely upon, but also you must disclose any documents which adversely affect or support the other party’s case. If you are uncertain as to whether a document needs to be disclosed, it is best to err on the side of caution and include it. A privileged document need not be disclosed to the other side. The relevant types of privilege are likely to be ‘legal advice privilege’ and ‘litigation privilege’. Legal advice privilege attaches to confidential communications and evidence of those communications, between a client and their lawyers which were created for the purpose of giving or obtaining legal advice. Litigation privilege relates to confidential documents that were created for the dominant purpose of actual or pending legal proceedings. It includes disclosure of documents prepared by employees and third parties. The brief description required on the disclosure form will be something along the lines of: ‘letter from A to B dated …..’ or ‘claimants invoice dated …..’ If there has been a lot of correspondence passing between the parties, you need only bundle them together and put ‘correspondence between the parties between (dates)’. In a straightforward case, where there are likely to be few documents and you are confident that the other side are not holding anything which could affect your case, it is permissible to agree with the other side an exchange of documents and to dispense with formal disclosure.
Specific disclosure is where the court orders a party to disclose a particular document or carry out a particular search for a document which could be important to the case. If you believe that your opponent has not disclosed a particular document, you may ask the court to make an order for specific disclosure. This must be supported by a witness statement, setting out the documents you wish to be disclosed and explaining why you believe there has been a failure to disclose in relation to these. You must be able to demonstrate that the disclosure required is proportionate to the issue.
An application for pre-action disclosure will usually be sought where it seems that insufficient information has been provided in the letter before claim or letter of response, to allow the party to fully understand what is being alleged. The court may order pre-action disclosure where the following conditions are met:
- Both the applicant and the respondent are likely to be parties to subsequent proceedings;
- The documents disclosure of which is sought are ones to which the respondent’s duty under standard disclosure would apply if a claim had been issued;
- Pre-action disclosure is desirable in order to (a) dispose fairly of the anticipated proceedings; (b) assist in resolving the dispute without issuing a claim; or (c) save costs.
Orders for disclosure can be made against a person or company not party to a case. Thus, an application can be made for an order that a third party disclose a document which supports your case, or adversely affects your opponents. A witness statement explaining the basis of the application and the orders sought will be required.
Each party is entitled to look at and require copies of the documents disclosed in another party’s list. Any objection to inspection will be set out in the list, where the disclosing party has a right or duty to withhold inspection of the document, for example if a document is privileged, or where the disclosing party considers it would be disproportionate to permit inspection of documents within a particular category. This latter objection can be challenged. Physical inspection of a document will usually only be necessary where the authenticity of the document is disputed, and in most cases a request for a copy of a document will suffice. However, where a party wishes to exercise his right to physically inspect the document, he must give notice in writing and you must allow inspection within 7 days of receiving the request.