Most Read Contributor in New Zealand, September 2016
A decision last week by the United Kingdom Supreme Court
on when a final judgment may be set aside because a party failed to
disclose relevant information provides a timely reminder of the
importance in litigation of properly locating and disclosing all
The case1 is the latest in the long-running
litigation concerning the rights of Chagos Islanders to return to
the homeland from which they were evicted in 1973.
At issue was whether a 2008 judgment2 of the House of
Lords, which upheld the validity of a 2004 rule prohibiting the
Islanders from returning, should be set aside due to a
"culpable" but not deliberate failure to disclose a draft
of the expert report on which the UK government relied in making
the 2004 rule.
The draft had been requested but could not be found prior to the
House of Lords' determination. It was subsequently discovered
in an off-site archive.
The Supreme Court found that the Secretary of State had breached
his duty of candour in failing to disclose the document but
declined 3:2 to re-open the House of Lords' decision.
Although the breach was "clearly capable" of
subjecting the other party to an unfair procedure that could
warrant setting a final judgment aside3, the majority
was not convinced that full disclosure would have led to a
New Zealand examples
In Banks v R4, the Court of Appeal recalled
its decision to order a retrial of John Banks and entered an
acquittal after the late disclosure of material that contradicted
aspects of the Crown's case. The Court found that, in light of
the stance the Crown took in resisting the appeal, the failure to
disclose was a "serious error of process" which had the
effect of misleading the Court.5
Similarly, in Elvidge v ASB Bank Ltd6, the
Court rescinded an order for security for costs after finding that
the applicant had misled the Court by not fully disclosing all
relevant information in circumstances where it had invited the
Court to accept its evidence as complete and
Both decisions are notable for the rejection of arguments that
non-disclosure was permissible because the information was not
relevant or material.
A comprehensive search of records has always been an essential
component of litigation preparation. Most searching and disclosure
is now electronic in form, which introduces practical and technical
The consequences of failing to comply, even inadvertently, with
disclosure obligations are serious. They may include adverse costs
orders, judicial censure and even the reversal of a favourable
judgment. Courts will scrutinise carefully claims that the
undisclosed documents were unimportant and will ordinarily insist
on full disclosure. If failure to disclose has misled the Court, or
could have impacted the Court's decision, a final decision can
1R (on the application of Bancoult (No
2)) v Secretary of State for Foreign and Commonwealth Affairs
 UKSC 35. 2R (Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs (No 2)  UKHL 61,  AC
453. 3 At  per Lord Mance. 4Banks v R  NZCA 182. 5 At  and . 6Elvidge v ASB Bank Ltd  NZHC 44. 7 At .
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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Parties have agreed on the resolution themselves, so it is often more practical for their own particular circumstances.
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