The purpose of disclosure and inspection of documents is to allow each party to evaluate the strength of its own case and that of their opponent ahead of any trial and by doing so, allow them to assess their prospects of winning (or losing) and promote early settlement. It is common for the course of a case to be altered at disclosure stage because this is the point at which a true picture of the background to the case (from both sides) and the issues involved will emerge.

Disclosure is often one of the most time consuming elements of the preparation for a case. Some of the disclosure process will have been completed at the pre-action stage but, within the proceedings, the disclosure documentation will need to be reviewed again to check for gaps in the documentation that are relevant to the case. The process will need to be dealt with comprehensively by both sides to the dispute and will need to be repeated because each side will be checking their opponent’s disclosure list to look for any residual gaps in documentation or for any documentation that they have not seen before.

Disclosure is a fundamental part of case preparation and this justifies the time that is necessary to spend on it.

What is Disclosure?

Disclosure is that part of a case where each party discloses the documents they have or have had that are relevant to the case.

For this purpose, documents are anything in which information of any description is recorded so this would include anything in writing, audio film or video recordings, computer disks, computer data, photographs and the like.

It may be the case that there are numerous copies of a single document. A party need not disclose more than one copy (so, for example, they only need to mention it once) unless a copy contains a modification, obliteration or other marking which makes it different to either the original or another copy so if you have 3 copies of the same document, one of which is clean, the other of which is annotated, and the third of which has some items obliterated, then you would need to disclose that document three times, in its various forms.

Standard Disclosure and a Duty to Search

Where the parties are ordered to give disclosure of documents, it will be limited to standard disclosure unless the court directs otherwise. Standard disclosure requires each party to disclose:

• documents on which they rely;
• documents which
• • adversely affect their own case
  • adversely affect another party's case
  • another party’s case and any documents which they are required to disclose by a relevant practice direction (see e-disclosure).

A duty of disclosure is limited to documents which are or have been in a party’s control so, documents that are in the party's physical possession are obviously included but the duty also applies to documents that the parties have a right to possession of or have had a right to inspect or take copies of it. The former would, for example, apply to house deeds that are held by a bank whereas in the latter case, that might apply to bank statements that are held by the bank but where copies can be obtained by a customer.

Similarly, documents held by a party’s agent are treated as documents within that party’s control. For this purpose, an agent is someone who may hold the document on behalf of a party to the case and who must deal with it as directed by that party.

Limiting disclosure

It is possible for all the parties to agree between themselves to either dispense with disclosure or to limit it. The parties may wish to dispense with the disclosure process where disclosure has been given in full at a pre-action stage of the case, usually through a pre-action protocol. On the limitation standard disclosure may apply where a full search (see below) may produce large amounts of paperwork that have no real relevance to the case and will simply serve to increase costs.

The disclosure process imposes on each party a duty to make a reasonable and proportionate search for all documents that have been in their control. The term "reasonable and proportionate" is deliberately vague and what is reasonable in any particular case will depend upon how many documents there are, how easy they are to obtain, the significance of the documents, and the nature and complexity of the case to which they relate.

If the parties limit their search in any way, the form contains a section to enable them to confirm how that search has been limited. Quite often, the parties will only go back so far in their search for documents to include nothing, for example, that pre-dates a contract to which the dispute relates.

Inspection

The disclosure process is followed by a right of inspection whereby each party has the right to inspect (or, more commonly, to receive copies) of, a disclosed document except where they are no longer in the control of the party who discloses or where the party disclosing the existence of the document has a right or duty to withhold inspection or when inspection would be disproportionate to the issues in the case.

If a party wants copies, they will usually write to their opponent specifying exactly what they want from a list contained on the Standard Disclosure form or schedule attached to it.

If, however, they want to inspect a document, they may only do so upon written notice and the party who disclosed the document must permit inspection not more than 7 days after the date on which the notice was received.

Procedure

The list of documents must show all documents in a logical order, usually that means chronologically, or, where there are a lot of documents, chronologically by group. Where there are a large number of documents that all fall into the same group, the disclosing party may list the documents as a group rather than separately. This will most usually apply to long chains of emails which are difficult to separate without spending a disproportionately long time on them.

Three Part Disclosure List

The standard disclosure list is in three parts:https://www.jacksonlees.co.uk/services/commercial-law/business-disputes

1. I have control of the documents. but I do not object to you inspecting the documents for which inspection will be given within the disclosure procedure
2. I have control of the documents…. but I object to you inspecting

In the normal course of events, the only reason for objecting to the inspection of documents in this category is that privilege is claimed (for privilege see below)

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

The list must identify any such documents and state what has happened to them so that they are no longer in the party’s control.

This section would normally apply to originals of copy documents prepared and sent out by one of the parties which would in any event be included in part A of the list.

Unless the list of documents is small, it is generally more convenient to prepare a separate schedule in respect of the documents listed in part A and in part C.

Disclosure Statements

The disclosure list is accompanied by a Statement of Truth. For this purpose, only the party to the case may sign the Statement of Truth; they cannot nominate their solicitor to do it for them. However, it is permissible (in the case of a company) for an authorised person who acts on behalf of the party, to sign.

For this purpose, the party who signs the disclosure statement must first confirm the extent of the search carried out, that they understand the duty to disclose and that they have carried out that duty. This is important as it ensures that the party signing directs their mind to the fact that their duty of disclosure is a duty to disclose documents which help or hinder their own case. Parties to litigation may well otherwise be tempted to disclose only those documents that help their case.

Disclosure as a Continuing Obligation

Disclosure is an obligation that continues until the end of the case. Sometimes, documents to which a duty of disclosure applies will come into being after the disclosure process has been completed and the process of disclosure will continue in the same way.

Privilege

Legal professional privilege belongs to the client. Where it exists and has neither been waived or abrogated, it is absolute, and the reason for that is to ensure that the party to a case is able to seek legal advice in complete confidence.

The term privilege relates only to legal professional privilege. A party to a case can withhold the right to inspect a document that has been disclosed where it is privileged.

There are two types of legal professional privilege:

Legal Advice Privilege

Letters and other communications that are passed between a party and his solicitor (or any predecessor solicitor) are privileged from production provided they are written to or by a solicitor in their professional capacity and for the purpose of giving or getting legal advice or assistance for the client. To that extent, it applies to litigious and non-litigious matters alike. The test is whether the communication or other document is made confidentially and for the purposes of legal advice.

It is broadly construed, however, and covers any information between a solicitor and client but which keeps the other informed within relevant legal context.

It is not confined to advice concerning legal rights and obligations. It will extend to matters such as instructing Counsel and, indeed, Counsels Advices and Opinions but it would not extend, for example, to any advice that is not of a legal nature, such as investment advice.

Litigation Privilege

Litigation privilege applies as between solicitors and third parties where and only where:

• communications come into existence after litigation is contemplated or commenced; and
• they are created with a view to the litigation either for the sole or dominant purpose of obtaining or giving advice in regard to it, or for obtaining evidence to be used in it.

Litigation privilege would therefore attach to an experts report or witness statements but only where they have not already been disclosed to an opponent (say, for example, where they have been exchanged).

Communications between a client and a third party

Documents (note not communications) that are passed between the client and a third party are privileged if the sole or dominant purpose for which they were produced was to obtain legal advice in respect of existing or contemplated litigation or conduct or to aid in the conduct of such litigation. Litigation must be reasonably in prospect at the time when the document was brought into existence and the sole or dominant reason for obtaining the document must have been to enable solicitors to advise on the merits of a claim.

This would cover an engineer’s report on, for example, the failure of an engine that was involved in an accident. This may be obtained by the client before seeing a solicitor or through a direct instruction.

The test is whether the dominant purpose at the time the document came into existence was for the purposes of litigation. If the dominant purpose was something else then it is not protected by litigation privilege.

Waiver

We have seen that privilege belongs to the client not the solicitor and therefore only the client can waive privilege.

However, once a copy of a privileged document is served on an opponent, it is waived. Careful thought needs to be given as to whether any particular document is or is not privileged before it is either enclosed in a disclosure list or enclosed as pre-action documentation that is sent to the opposing party as part of an early disclosure process.

Your solicitor will discuss with you whether any document is or is not privileged if the circumstances are such that it is not obvious and only then will a decision be made on whether or not to disclose.

Without prejudice correspondence between the parties

This is not privileged as between the parties (each side will have seen the correspondence so it cannot be privileged) unless it has taken place between two (or more) of the parties in an action involving others who were not a party to without prejudice communications. Only in those cases would without prejudice correspondence be privileged. Without prejudice correspondence would usually be disclosed generically in section A of the disclosure form as correspondence passing between the parties’ legal advisers.

Specific Disclosure

If one party believes that their opponent has failed to give full disclosure, then he can make an application for specific disclosure. Any application must clearly state the order the applicant wants the court to make and the grounds upon which the application is made. For example, in a construction dispute, it may be the case that there are health and safety records that a construction company would normally be expected to keep but which have not been disclosed. Alternatively, partial disclosure may reveal references to a document that has not been disclosed.

As with all litigation, before an application is made, the party seeking specific disclosure should write to the other side giving full information about why they consider the disclosure is incomplete and what it is they believe is missing, requesting its disclosure.

It is also possible for a party to make an application for specific disclosure and/or specific inspection before a claim is issued. This will take the form of an application for pre-action disclosure.

Non-party and pre-action disclosure

Once a claim has been started, any party may apply for disclosure against a person who is not a party to the case. Any application must be supported by evidence and the court will only order disclosure against a third party if:

• the documentation sought is likely to support the case of one party or adversely affect the case of another party; and
• disclosure is necessary to dispose fairly of the claim or to save costs.

Any order for third party disclosure must therefore specify the documents or classes of documents that must be disclosed and require the third party to specify which documents are no longer in his control and which are privileged so to that extent, it operates in exactly the same way as the obligations on disclosure by a party to the case.

If an application for specific disclosure is made at the pre-action stage, whether that is against a party or a non-party to the case, then the usual costs rule is that the applicant must pay the costs of the person they are seeking disclosure from.

Electronic disclosure

Electronic disclosure means documents that are easily accessible from computer systems and other electronic devices and media that are either owned by or accessible by one of the parties. It will include documents stored on servers and back-up systems and documents that have been deleted. It will also extend to additional information stored and associated with electronic documents known as metadata.

Metadata describes other data. It provides information about the content of an item so, for example, an image might include metadata that describes how large it is, its colour, its depth and its resolution. Metadata documentation might contain information about are how long it is, the author, the date it was created and a summary of the document, all of which can be useful to a party in determining whether full disclosure has been completed.

Consequences of a failure to disclosure

Where a party fails to disclose a document or discloses but fails to allow inspection, they may not rely on that document for their own case unless the court gives permission. This prevents one party being “ambushed” by last minute disclosure by their opponent.

Where a party fails to disclose a document that will harm their own case, a court has the power to strike their case out for failure to comply with an order for disclosure although in these cases this will normally be preceded by the warning shot of an order for specific disclosure within a period of days which, if not complied with, will mean automatic strike-out.

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