Introduction
Disclosure is the process whereby the parties to litigation must make available all evidence relevant to the proceedings. It is fundamental to achieving a fair and just trial. However, it can often end up being the most costly part of litigation: it is crucial to ensure that the process is properly managed and kept proportional at all times
All Cards on the Table
The approach of the English courts to disclosure often surprises clients, especially those used to litigating in foreign jurisdictions. Parties to proceedings in England and Wales are under a duty to disclose all documents that either support or adversely affect their own case or that of the other party; to effectively lay all their cards on the table. This is a continuing obligation under which the parties remain until the conclusion of proceedings.
It is therefore essential as soon as litigation is contemplated that care is taken not to destroy any existing documents and, further, not to create any new documents which may later have to be disclosed.
Procedure
Disclosure is not an automatic process: it must be ordered by the Court. An order will usually be made after statements of case have been exchanged at the Case Management Conference (CMC). Parties should seek to agree the order in advance.
In most cases, a disclosure report must be filed and served by each party at least 14 days before the CMC. This should confirm the type of order sought and give an overview of the number and nature of documents to be disclosed, their availability, accessibility and storage and an estimate of the costs likely to be involved in obtaining them. The parties must also discuss and seek to agree a proposal for disclosure at least 7 days in advance of the CMC. Where the need for electronic disclosure is anticipated there are further specific issues which parties are required to discuss in advance.
Recent reforms aimed at reducing the costs of litigation are driving the Court to take a more active "project management" approach. Standard disclosure is no longer to be considered the default approach and the Court is being encouraged to consider more creative options from a menu of disclosure orders. The objective is to reduce expenditure unnecessarily incurred on disproportionate disclosure by tailoring the disclosure ordered to the specific requirements and circumstances of each case.
Slightly misleadingly, the term 'disclosure' is generally used to refer to what is in fact a distinct two-part process of disclosure and inspection.
i) Disclosure
Technically, 'disclosure' means stating that a document exists or has existed. The definition of a document is wide and includes "anything in which information of any description is recorded". This extends to metadata (information stored and associated with electronic documents), including information stored on servers, back-up systems and information which has already been deleted. Almost anything can therefore fall to be disclosed; the definition has even been stretched to include data stored in the memory of a washing machine!
The disclosure obligation is limited to documents which are or which have been within a party's control. This includes documents currently in that party's physical possession and also documents in the possession of a third party but in relation to which they retain the right to obtain, inspect or take copies.
Parties are required to carry out a 'reasonable search' for such documents, taking into account factors such as 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. Additional factors may come into play when searching for electronic documents.
Disclosure is effected by the parties each exchanging a list of documents, separated into three parts: documents within a party's control to be produced; documents within a party's control not to be produced (for example, privileged documents); and documents which are no longer within the party's control but have been previously. The list must include a disclosure statement signed by the client to certify their understanding of and compliance with the duty of disclosure and setting out the extent of the search undertaken. Knowingly signing a false disclosure statement constitutes contempt of court.
ii) Inspection
The second stage in the process is 'Inspection'; the parties are given the opportunity to examine the documents disclosed (except for those subject to privilege). Specific requests may be made for any documents which appear from the disclosure list to be missing. There is also a free-standing entitlement for parties to inspect any document referred to in any statement of case.
Documents may be redacted only in certain circumstances; commercial sensitivity alone is not a sufficient ground.
Pre-Action and Non-Party Disclosure
In certain circumstances and if in the interests of saving costs or assisting in the prompt resolution or disposal of proceedings, the Court may make an order for pre-action disclosure or for disclosure against someone who is not a party to the proceedings.
Summary
Properly managed, disclosure can be an efficient means of sharing between the parties and the Court the information needed to resolve a dispute. In line with the recent reforms and the drive to consider the "price tag" of each aspect of the litigation process, the advent of electronic disclosure and online data platforms which provide more efficient methods of data-sharing should be welcomed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
