Here we consider what is meant by disclosure and what disclosure related obligations arise in civil litigation. Broadly, disclosure is concerned with the parties to a claim telling each other what documents they hold that might have a bearing on the issues in dispute.
Unfortunately, it can be one of the most time-consuming and expensive aspects of litigation.
This guide should not be relied upon as legal advice and you should contact us for advice on your specific circumstances.
Disclosure and Inspection
Part 31 of Civil Procedure Rules defines disclosure as ‘stating that a document exists or has existed’. Critically, documents include ‘anything in which information of any description is recorded’ and these include written documents, audiotapes, videotapes and photographs. In our computer age, they also include every kind of
computer file. This means everyday Word documents, Excel spreadsheets and emails, and less obvious things such as text messages, MP3 files, deleted files and metadata. Copies of documents must also be disclosed if they contain any relevant differences from the original (for example, handwritten notes or different date).
Inspection is the process in which the parties exchange their documents and is inextricably linked to disclosure. The parties can either allow their opponent to inspect the original documents or, more commonly, provide the opponent with copies of the documents.
Typically the courts will order parties to provide standard disclosure (as opposed to a more or less onerous obligation). Broadly, this requires each party to disclose:
(a) the documents on which they rely; and
(b) the documents which:
i. adversely affect their own case;
ii. adversely affect another party’s case; or
iii. support another party’s case.
It is important to note that you are not entitled to withhold documents which either adversely affect your case or support your opponent’s.
Disclosure in Multi Track Cases
• Standard disclosure used to be the default requirement in multi track cases, but this changed as of 1st April 2013.
• Now, for the case management stage of a multi track claim, the parties will be required to file a disclosure report setting out what relevant documents exist, where and how they are stored and the likely cost of complying with standard disclosure. The parties must then discuss reports and attempt to agree what should be given.