Disclosure Obligations: 5 things you need to know
As soon as an individual or company anticipates that litigation may be commenced, they are under strict obligations in relation to disclosure. There can be serious consequences if a party fails to comply with its obligations.
This article sets out the top 5 essential things you need to know about the disclosure process.
What is disclosure?
Disclosure is the process by which the parties to litigation exchange documents, whether or not the documents support or undermine that party’s case. This unique “cards on the table” approach is an essential part of the litigation process and can help promote settlement as the parties become more aware of the relative strengths / weaknesses of their case. The rules on disclosure can be found at Part 31 of the CPR.
When does the duty of disclosure begin?
The duty of disclosure is ongoing and lasts until the claim is concluded. As soon as a party is aware that litigation might be possible, it has an immediate duty to preserve all documents that may be relevant to the claim.
What documents must be disclosed?
The exact rules for disclosure of evidence will depend on the Court dealing with the specific case. However, the definition of a “document” for the purpose of disclosure is very wide and includes “any record of any description containing information”. This includes emails, text messages, WhatsApp messages, handwritten notes, images/drawings, and video footage.
Preservation of documents
As stated above, parties have an obligation to preserve documents from the time that litigation is contemplated. The parties must take reasonable steps to preserve documents, and any relevant document deletion or destruction process (for example, the “disappearing messages” setting on WhatsApp) must be suspended.
Failing to comply with disclosure obligations
The duty of disclosure is strict, and the courts take it very seriously. Failure to comply with disclosure obligations can result in sanctions, including costs penalties. Further, a party who fails to disclose or permit inspection of a document may not rely on that document without the court’s permission to do so. In a recent hearing in the ongoing dispute between Rebekah Vardy and Coleen Rooney, the court demonstrated the rigorous approach that it will take in relation to disclosure. To read more about the issues arising from disclosure in this case, click here.
For more information on complying with your disclosure obligations, contact our experienced commercial litigation team on 020 7632 4300 or make an enquiry.