Updated: Mar 3, 2021
What is disclosure and why do I need to disclose documents?
You are an employer. You have been asked by your solicitor to provide documents from your office files to be used in a case in the County Court, High Court or Employment Tribunal.
You do not want to do so.
You ask your solicitor “Why should I have to disclose these documents?”
Your solicitor replies: “Disclosure of documents is an essential stage of any litigation.
As a party to litigation, you have a duty to disclose documents that relate to the issues in the litigation to your opponent. You also have to sign a declaration to confirm that you understand your disclosure duties and that you have complied with those duties”.
This note explains what disclosure is and what you should expect during the disclosure process.
Disclosure of documents refers to the stage of the litigation process when each party is obliged to disclose the documents in its control and or that have been in its control which are relevant to the issues in dispute to his/her opponent.
Benefits of disclosure.
Disclosure enables the parties in dispute to assess each other’s position and the strength of the available documentary evidence prior to incurring the full cost of proceedings. Many cases settle following disclosure of documents.
What is a document?
Documents cover anything in which information of any description is recorded – eg videos, computer records, letters, emails, text messages, photographs, post-it notes, scribbles in correspondence, files, materials, clothing, machinery parts, electronic material stored on servers and backup systems, deleted electronic documents still recoverable from the backup system and even information stored and associated with electronic documents known as metadata.
How do I disclose documents?
Disclosure of documents is achieved simply by stating that the documents exist or have existed. This is done by preparing a List of Documents, which states that a search has been carried out to find all the relevant documents. You have to sign a declaration confirming that you have understood your disclosure duties and have complied with the duty to disclose documents.
The duty to disclose documents continues until the proceedings are ended. If you discover additional documents to which that duty extends at any time during the proceedings, you must notify every other party and the court immediately.
What should be disclosed?
All documents that are or have been in your control must be disclosed under the relevant rules or court order. Under the court rules the word “Control” is not limited to documents that you have or previously had in your possession as it also includes documents that you have or have had the legal right to possess, inspect or copy (e.g., documents held by solicitors or accountants or other professional agents). You must disclose documents that:
Assist your own case.
Are adverse to or damage your case.
Assist your opponent’s case.
Are adverse to or damage your opponent’s case.
Right to inspect documents
The parties have a right to inspect each other’s disclosed documents unless exceptions apply. Copies of disclosed documents can be requested and have to be supplied at a reasonable copying cost.
Some Points to Note:
The parties are under a duty to disclose known adverse documents regardless of whether a court order for disclosure is made. This duty continues until the conclusion of the proceedings or until it is clear there will be no proceedings.
“Known adverse documents” are those documents of which a party is actually aware are or were in its control, for which it cannot claim privilege, and which damage the disclosing party’s case or supports that of his opponent.
If you want to be on the safe side, simply assume that any piece of information that passes through your hands will end up in open court and be used against you.
Parties are required to disclose all relevant documents. So even if there is a document that benefits the other party, you still have to disclose it – you cannot pick and choose!
Disclosure can be a time-consuming process.
Confidentiality is not an automatic bar to disclosure.
If you fail to disclose or fail to allow inspection of documents you will not be able to rely on those documents unless the court gives permission.
An application for specific disclosure can be made if your opponent believes that you have documents which have not been disclosed. This could result in you having to pay your opponent’s court costs.
Your opponent could apply for a search order and enter your premises to search for documents you failed or refused to disclose
The duty of disclosure continues until the proceedings are concluded. Even if you have already completed and filed your List of Documents, you are still under a duty to disclose any new documents that come to your attention to all other parties and the court.
Disclosed documents can be used only for the purpose of the proceedings in which they were disclosed unless the relevant document has been referred to at a public hearing, the court grants permission or the party who disclosed the documents and the person to whom the documents belong agree. However, the court may make an order restricting or prohibiting the use of a document even if the above criteria are satisfied.
The search for documents must be reasonable and proportionate. You should consider:
the nature of the proceedings, the number of documents involved;
the costs involved;
whether additional searches would be disproportionately expensive; and
the importance /relevance of any document that is likely to be found.
Proceedings for contempt of court may be brought against anyone who makes or causes to be made a false disclosure statement without an honest belief in its truth.
You must preserve all documents that may be relevant to an issue in the proceedings.
You must not destroy any relevant documents in order to prevent your opponent from seeing the documents or authorise anyone else to do so.
You are obliged to notify employees, former employees and third parties in possession of relevant documents of their duty not to destroy any relevant documents.
You do not need to disclose communications between you and your solicitor as they attract “legal advice privilege” ie they are privileged.
In certain circumstances you do not need to disclose communications between your barrister and experts if the communication was made in anticipation of legal proceedings or in the course of the particular proceedings. However, if the communication is relevant to the dispute but was not created as a result of or in anticipation of the dispute then it must be disclosed.
It is therefore essential that you understand your duties of disclosure and comply with your disclosure obligations.
Specialist Litigation Solicitors
How can Pure Business Law help?
We are fixed fee specialist Litigation lawyers based in Bedford and London. We operate nationally. If you would like to discuss anything in relation to the article above or any other issue regarding Disclosure, please contact us and speak with one of our specialist Disclosure solicitors.
Our expert specialist fixed fee Litigation solicitors can deal with Disclosure of documents in different areas of law. Pure Business Law is regulated by the Solicitors Regulation Authority and is a licensed member of the Law Society of England & Wales.