DISCLOSURE

Disclosure is the formal process by which parties to claims give each other copies of the documents in their control which are material to the issues in the claim. Disclosure is usually made pursuant to a direction of the court to give disclosure “by lists”, followed by what is called “inspection”.

Standard disclosure requires a party disclose only:

  • the documents on which he relies; and
  • the documents which-

    • adversely affect his own case;
    • adversely affect another party’s case; or
    • support another party’s case; and
  • the documents which he is required to disclose by any relevant practice direction.

Although these categories (above) do not include used to be called a “train of inquiry” documents categories above are nevertheless wide ranging, many litigants are surprised at the breadth of documentation they are required to disclose. Importantly, to ensure the system works fairly between the opposing parties, lawyers are under a positive professional duties to advise their clients on their disclosure obligations, and clients must take personal responsibility by signing a “disclosure statement” indicating that they have discharge their disclosure obligations. CPR 31.7 requires a party order to give standard disclosure to “make a reasonable search for documents falling within r.31.6(b) and (c)”. The effect of this is to apply the principle of “proportionality” to searching for the purposes of standard disclosure. Search the documents required under these rules but may make a policy decision not to searching places where the cost of searching could not be justified by a small chance of finding anything disclosable.

Disclosable documents do not cover documents which are relevant solely to “credit” (Thorpe v Chief Constable of Greater Manchester Police (1989) 1 WLR 665).

In practice, there is usually no formal “inspection” but one party requests copy documents from the other party’s list, which are then disclosed. Where an opponent fails to give disclosure in accordance with directions, the innocent party should still comply with its own disclosure obligations but may apply for “unless” order, or “specific disclosure”. Deliberate destruction of documents to avoid the obligation to give disclosure, particularly after an unless order, is likely to result in a severe sanction, such a striking out (Rykak v Langbar International Ltd (2010) EWHC 2015).

Disclosed documents are provided the purposes of the present litigation and must not be used for any “collateral purpose”, although this protection is usually lost once the documents are referred to in open court.

The rules on disclosure, in CPR 31, do not apply at all to the small claims track. On the small claims track, parties are required to disclose only the documents on which they intend to rely trial (CPR 27.4(3)(a)).

Specific Disclosure

A party who wishes to obtain copies of particular documents which are believed to be in the custody of another party may make an application for specific disclosure under CPR 31.12. Applications for specific disclosure are most frequently made after standard disclosure has been given, and disclosed documents have been inspected (although there is no restriction in this respect, and the court has jurisdiction to order specific disclosure before standard disclosure has taken place (Dayman v Canyon Holdings Ltd (2006) LTL 11/1/2006). Until an issue is pleaded specific disclosure will not be ordered (Taranissi v British Broadcasting Corp (2008) EWHC 2486.

  • If the application is made in granted, the court may make an order under CPR r.31.12, ordering a party to do one or more of the following:

    • disclose documents or classes of documents specified in the order;
    • carry out a search to the extent stated in the order;
    • disclose any documents located as a result of that search.

A party is entitled as of right to see any documents that are referred to in: statements of case, affidavits, witness statements; referred to in open court; and, importantly, can see anything that is referred to in an expert report. This is more useful where a medical report refers to a previous (presumably unfavourable) medical report (though it applies equally to all expert reports).

The usual response opposing an application for specific disclosure is to contend that either: you have not go the document in your possession, custody or power; or that to disclose it would be “disproportionate” to the costs involved. The application should only follow a request in correspondence for specific documents (identifying those documents) and following a clear and straightforward refusal to produce such documents. A party is not entitled to go on a “roving exercise” (otherwise known as a “fishing expedition”) seeking to support a non-pleaded case, or worse can’t find a case to proceed.

Late Discovery before trial

Under the pressure of litigation, litigants can sometimes fall into the trap of manufacturing the “helpful” document. Where such a document is not in the disclosure list and is “too good to be true” (in that it supports unequivocally a party’s position) then it should be examined very closely indeed. If necessary, a document examiner or handwriting expert should be instructed. It should be noted that the authenticity of documents disclosed to a party under CPR 31 are deemed to be admitted, unless the party served notice requiring the document to be proved at trial (CPR 32.19).

With reference to a document that was produced on a computer, the “metadata” (being the “footprint” creating that document on the computer) should be examined to determined when the document was created, and when it was looked at, and amended.

Litigants have a duty of continuing discovery of documents which come into their possession, even if it is at trial or just before trial. A late document which may require investigation may inevitably lead to the adjournment of a trial (at the cost of the party who discloses the document late). If documents, to which a duty of disclosure extends, comes to a party’s notice at any time during the proceedings (including during the trial) every other party must be notified immediately (CPR 31.11(2)). Disclosure should be given by a “supplemental list” (PD31A, para 3.3).