Disclosure and Inspection of Documents in Court Proceedings
Disclosure is a fundamental aspect of litigation in this jurisdiction, it ensures the transparency and fairness between parties and is considered to be one of the very useful litigation tactics.
Further to our article on ‘Disclosure Obligations - 5 things you need to know’, in this article, we will provide an overview on:
- Key elements of the duty of disclosure
- What documents must be disclosed
- Inspection of documents
- Exceptions to disclosure and inspection of documents
- Consequences of non-compliance
Duty of disclosure
The duty of disclosure is governed by Part 31 of the Civil Procedure Rules (“CPR”). The meaning of disclosure is set out under CPR 31.2, being: A party discloses a document by stating that the document exists or has existed. This duty is ongoing and begins from the moment when litigation is contemplated by the parties until the conclusion of proceedings.
What documents are required to be disclosed?
A “document” is defined under the CPR to include anything that records information of any description, regardless of format.
Parties to litigation not only need to disclose documents that they seek to rely on and documents that may negatively affect their opponent’s case, but they are also required to disclose documents that may negatively affect their own case and ones that will support their opponent’s case. This would also include any documents that are required to be disclosed under a relevant practice direction of the CPR. This is called ‘standard disclosure’.
Parties must undertake a reasonable search for these documents. If a full search is not possible or proportionate, the disclosing party must provide an explanation in their disclosure statement.
Apart from standard disclosure, the court may order ‘specific disclosure’ under CPR 31.12, requiring a party to:
- Disclose documents or class of documents specified in the order;
- Carry out a search to the extent stated in that order; and/or
- Disclose any documents located as a result of that search.
Exceptions to disclosure and inspection of documents
Disclosure
A party may be permitted to withhold disclosure of a document if its disclosure would harm the public interest. This requires a ‘without notice’ application from the applicant for the court to permit him from withholding disclosure.
Inspection
Even if a document is disclosed, the other party’s right to inspect it may be limited. A document may be withheld from inspection if:
- It is no longer in the disclosing party’s control (e.g., lost or destroyed);
- The disclosing party has a legal right or duty to withhold inspection (this must be stated in writing); or
- The document is privileged. Privileged documents include legal advice (communications between a lawyer and a client); litigation privilege (communications made for the purpose of litigation); and without prejudice communications relating to settlement discussions. If a privileged document is inadvertently disclosed and inspected, the inspecting party cannot rely on it without the court’s permission.
Consequences of non-compliance
Under CPR 31.21, it states, a party who fails to disclose or permit inspection of a document may be prevented from relying on it at trial unless the court grants permission.
However, the implications can go further. As established by case laws, the consequences for such failure may extend to the need for applications for relief from sanctions; adverse cost orders; and potential damage to the credibility of the non-compliant party’s case.
We are here to help
Understanding the rules and responsibilities regarding the disclosure process ensures parties can navigate litigation efficiently and fairly, while avoiding potential costly consequences for non-compliance. If you are involved in a dispute or require guidance on disclosure obligations, please do not hesitate to get in touch with us by making an enquiry online or call us on 020 7632 4300.