Disclosure Of Documents In Civil Proceedings In England And Wales

Disclosure

"Disclosure" is the term given to the stage of the litigation procedure when each party may be required to collect and review potentially relevant documents and then state to the other parties (usually in a formal List) the disclosable documents which exist or have existed. The other party has a right to a copy of those disclosed documents, subject to certain exceptions. This process is known as "inspection". In cases where large numbers of documents are involved, disclosure may be a lengthy exercise involving a significant amount of management time. The cost of that time will not normally be recoverable from the other party. It is nonetheless essential that it is carried out conscientiously, since it can determine the success or failure of a party's case. Also, the parties' solicitors are under a duty to the court to ensure that it is done properly and the consequences of failure are potentially severe.

It is frequently only when disclosure has taken place that lawyers are in a position firmly to predict the likely result of the litigation, although it is possible to obtain pre-action disclosure in some cases (see below). The prospect of disclosure may compel a party to explore an early settlement before its opponent sees its documents, and in many cases settlement follows shortly after disclosure has taken place.

Purpose of this note

The purpose of this note is to explain in practical terms what disclosure entails and the problems most often encountered. One of the major challenges of disclosure is managing the increasing volume and variety of electronic documents which are potentially disclosable. This can be achieved by carefully considering what a party's legal obligations require in practice, forward planning of the process and appropriate and cost effective use of technology. Guidance is also given on ensuring that, once litigation is envisaged, the number of disclosable documents created thereafter is kept to a minimum and, so far as possible, steps are taken to ensure that documents are protected by "privilege" and therefore need not be shown to the other party (see below).

The rules of disclosure in "multi-track" proceedings (most claims over £25,000) are contained mainly in Part 31 of the Civil Procedure Rules (CPR) and in the Practice Directions on disclosure. Different rules apply to cases running under the pilots for the Shorter or Flexible Trial Schemes. This note summarises the points of main interest to clients.

Disclosable documents

The court determines the appropriate basis for the disclosure of documents. Usually it will order disclosure on the "standard basis", or "standard disclosure". This requires disclosure of documents relevant to the dispute which are, or have been, in a party's control (see below) and which it relies upon or which adversely affect its own case, or which support or adversely affect another party's case. The test excludes background documents and documents which may indirectly advance or damage a party's case. Standard disclosure requires a party to undertake a reasonable search for documents (see below). A party cannot pick and choose which documents to disclose based on its own priorities.

"Standard disclosure", whilst the most common type of disclosure, is not the court's only option. The court can choose from a "menu" of disclosure options set out in the CPR. This includes standard disclosure, but also gives these five other options:

an order dispensing with disclosure; an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party; an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis; an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences; or any other order in relation to disclosure that the court considers appropriate. The judge will decide what order for disclosure to make, usually at the first case management conference ("CMC") bearing in mind the overriding objective of the CPR and the need to limit disclosure to that necessary to deal with the case justly.

The judge will be guided by the parties, who must, before the CMC, have identified to each other in a "disclosure report" what documents exist, or may exist, which are, or may be, relevant to the matters in issue in the case. The reports will describe where those documents (including electronic documents) are, or may be, located. The parties will also have to include in their reports estimates of the broad range of costs that could be involved if they were to give standard disclosure, including - very importantly, given that this is often the most expensive aspect of the disclosure exercise - the costs of searching for and disclosing electronically stored documents.

In their disclosure reports, the parties must indicate which type of disclosure from the menu of disclosure options would be most appropriate. Having each considered the other parties' disclosure reports, the parties must liaise to try and agree an appropriate, cost- effective, proposal for carrying out the disclosure exercise. At the CMC, the court can accept this or impose what it considers to be a more proportionate way of giving disclosure.

The court can also give directions about how disclosure should be given (including varying the standard disclosure procedure set out in the CPR, which this note considers below), for example, what searches should be undertaken and in what format the documents must be disclosed.

In the context of disclosure, "documents" means anything in which information of any description is recorded. In addition to writings on paper, the term includes electronic documents, photographs, plans, drawings, and video and sound recordings. A computer's hard drive is itself a "document", which could contain many other different electronic documents including e-mails, voicemail recordings, chat room and social media messages. The definition of "documents" also covers documents stored on servers and back-up systems, electronic documents that have been deleted and "metadata", ie information stored with and about electronic documents, such as data showing by whom the document was created, when it was modified and by whom. Electronic documents include documents accessed on all forms of electronic media, including desktop and laptop computers, personal mobile devices (such as smart phones and tablets) and external storage devices (such as USB memory sticks and external hard drives). In addition to word- processed documents, the definition of documents covers mail files (including Calendar, Journal and To-Do lists or their equivalent), web-based applications, spreadsheet files and graphic and presentation files.

Control

Subject to the type of disclosure ordered, a party must disclose documents that are or have been in its "control". This means that documents must be disclosed if a party has physical possession of them (whether or not it has a right to possess them), if it could obtain them by enforcing some right to possession or if it has a right to inspect or take copies. Thus, the documents of a party's agent (such as an insurance broker) which the agent can be compelled to release must be disclosed.

Documents of an associated company may not have to be disclosed unless there exists a right to inspect - this...