A basic guide to disclosure

Part 31 of the Civil Procedure Rules 1998 (“CPR”) deals with disclosure and inspection of documents

What are you obliged to disclose?

Standard disclosure requires you to disclose the documents on which you rely and any documents that adversely affect your own case or support the other party’s case (CPR 31.6).  The Court can also make an order for specific disclosure i.e. of a particular sort or category.  A “document” is defined by CPR 31.4 and is anything in which information of any description is recorded.  The information can be of any type and so a “document” could be a video, photograph, email or information on a hard drive or removable media such as a USB data stick.

Which documents?

The duty to disclose is limited to documents that have been or are within a party’s control (CPR 31.8). This means either something physically possessed by a party or something they have a right to possess or inspect. A copy of a document containing alterations is treated as a separate document, so you should disclose both versions (see CPR 31.9).

Privileged documents

Communications between a party and their solicitor do not need to be disclosed as they attract ‘legal advice privilege’.  This rule exists to protect the solicitor-client relationship so that clients feel able to fully disclose details of a matter to their solicitor without the worry that the information could be used against them.  In addition to this, communications involving counsel and experts attract ‘litigation privilege’, meaning that these communications also do not need to be disclosed.  However, these rules only apply if the communication was made in anticipation of or during the particular proceedings.  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.

Other types of privilege include privilege against incrimination, public interest immunity, privileged without prejudice settlement proposals and privilege on the basis of miscellaneous contractual and statutory grounds.  “Communications”, for the purposes of the privilege rules, includes any physical papers (whether letters, faxes, manuscripts or notes), electronic records (such as emails, word processor documents or spreadsheets), USB data stick, discs, telephone conversations and voicemails.

Searching for documents

There is an obligation to make a reasonable search for documents.  The meaning of reasonable depends on the nature and complexity of the proceedings, the number of documents, the costs involved and potential importance of any documents found.  A reasonable search should be “tailor-made” to the particular case (Nichia Corporation v Argos Limited [2008] EWCA Civ 741).

The disclosure statement

If it was unreasonable to have searched for a category or class of document, the disclosure statement should make this clear.  PD31 4.4 places an obligation on the legal representative acting for a party giving disclosure to "endeavour to ensure that the person making the disclosure statement... understands the duty of disclosure under Part 31".  In Wagstaff v Colls [2003] EWCA Civ 469 it was stated, " ...it is the solicitor who is in charge of deciding what documents are or are not to be disclosed... he cannot hide behind his client's instructions. If he cannot persuade his client to comply with what is right in the circumstances, the solicitor must withdraw from the case."

What are the limits?

The duty to disclose is on-going until proceedings are concluded (see CPR 31.11). If, following disclosure, further documents come to light, there is a duty to immediately notify the other party.

Failure to comply

If a party fails to comply with the disclosure requirements, any order or judgment that is made in the claim could be struck out (see Rybak v Langbar international Ltd [2010] EWHC 2015).

Inspection

Following disclosure, the opposing party has a right to inspect the disclosed documents.  There are however some exceptions:

1. Where documents are no longer in the control of the disclosing party;
2. Where it would be disproportionate to the matters in issue to allow inspection; or
3. Where the disclosing party is entitled to withhold the document.

For further details on what constitutes “disproportionate” see CRP 31.3(2).  Broadly speaking, it is a balancing act between the value of the documents, value of the claim and costs of allowing inspection.  The key issue is the effect the decision not to inspect would have on the fair disposal of the claim.

The final word

The court will always retain discretion as to whether to order disclosure of specific documents (see CPR 35.10(4)); this includes ordering disclosure from third parties or disallowing disclosure where it would be disproportionate.  In the Court of Appeal decision of Fiddes v Channel 4 TV Corporation [2010] EWCA Civ 516 it was decided that a judge had correctly considered the various factors relevant to a decision on whether to order the defendant in a libel action to search back-up tapes of computer records in order to retrieve deleted emails.  He had assessed the costs and time implications against the likely success of retrieval.  He had been entitled to conclude that there was no sufficient likelihood of retrieving emails that were significant and relevant to the action.  The court's power is however not unlimited, as can be seen in the case of Mireskandari v Associated Newspapers Ltd [2010] EWHC 967 (QB).  It was held that the court had no jurisdiction to order disclosure of documents provided to a judge when he was instructed as counsel, in order to support an allegation of apparent bias against that judge arising out of the fact that he was involved in unrelated litigation at the Bar involving one of the parties.