The Claims Process – Disclosure

In the previous article in this mini-series, we looked at Interim Applications.  In this article, we will be looking at the Disclosure procedure.

What is Disclosure?

Disclosure is a crucial aspect of civil litigation, ensuring transparency and fairness between the parties.

The process involves all parties to the proceedings making documents that speak to an issue in dispute readily available to all other parties. The complexity of disclosure will likely vary based on the issues raised in each individual case.

The Court has the power to order that disclosure be disposed with altogether, but most commonly an order will be made for standard disclosure.

The Civil Procedure Rules define ‘disclosure’ at Rule 31 as ‘stating that the document exists or has existed’ and a document will include ‘anything in which information of any description is recorded.’ This is not limited to paper documents, extending to all electronic documents including emails, audio-files and much more!

What is eDisclosure?

As referenced above, electronically stored information (ESI) is also subject to the disclosure process. Memory sticks, mobile phones and metadata are all considered to hold ‘disclosable documents’ if potentially relevant to the dispute.

eDisclosure itself is the term given to the compiling of all ESI. This can be very complex and dependent upon the nature and extent of the electronic documents, may require the assistance of a forensic computer expert in order to safely manage the disclosure of these documents.

Standard Disclosure

As set out above, standard disclosure is the most common type of disclosure and will require each party to disclose the following pursuant to CPR Rule 31.6:

1. Documents on which they intend to rely; as well as
2. Documents which:

• • Adversely impact their own case;
  • Adversely impact another party’s case; or
  • Support another party’s case.

Each document should be itemised on Form N265 as the ‘List of Documents’ and will be divided into three parts:

Part 1: I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.

Part 2: I have control of the documents numbered and listed here, but I object to you inspecting them. I object to you inspecting these documents because…

Part 3: I have had the documents numbered and listed below, but they are no longer in my control.

Parties must only disclose documents that are relevant to the above categories.  The Courts have emphasised the importance of narrowing the scope of disclosure in order to allow parties to properly consider the ‘relevant’ documentation. Furthermore, parties must be conscious of the fact that the duty to disclose is a continuing duty and if additional documentation becomes relevant throughout the course of proceedings, these must be properly disclosed.

Specific Disclosure

There may be certain circumstances whereby the Court will make an Order for specific disclosure.  This is often done whereby a party has previously provided inadequate documentation in standard disclosure and a party considers that documents which should be available and disclosable have not been disclosed.  Specific Disclosure can order a party to:

• Disclose additional documents or classes of documents, or
• Carry out further searches for specified documents and disclose any documents located as a result of that search.

Privilege

Certain documents, such as those protected by legal professional privilege, may be exempt from inspection.  In these circumstances, the existence of the document must be disclosed in Part 2 of Form N265 but the actual document itself can be withheld from inspection.  Legal professional privilege covers legal advice privilege, litigation privilege and without prejudice privilege.

Disclosure in the Business & Property Courts

The Disclosure Pilot Scheme (DPS) was introduced for the Business and Property Courts in January 2019 under Practice Direction 51U.

The regime was established in order to streamline the disclosure process with a specific focus on minimising costs.  Some key features of the DPS are as follows:

Initial Disclosure, encouraging parties to disclose documents relied upon at the Statement of Case stage of litigation.

Disclosure Review Document, a new document introduced to simplify the disclosure report and Electronic Documents Questionnaire.

Extended Disclosure Models, 5 new types of disclosure to deal with a wider range of circumstances.

A trial of the DPS ran in the Business and Property Courts for two years before being approved for use on a permanent basis from October 2022 as Practice Direction 57AD.

How can we help?

Litigation can be overwhelming, there are a lot of moving parts making it difficult to navigate alone.  Luckily, our team has the expertise to help you at every stage of the process.

If you have any questions about the above or require the help of our Dispute Resolution team, do not hesitate to get in touch.