2020-02-16
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Top tips on standard disclosure in litigation

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Posted by Matthew Goodwin on 17 May 2015

Matthew Goodwin Associate-Solicitor-Advocate

Whether your claim is small or large, a professional negligence or breach of contract or share sale dispute or any other litigation claim going through the court system, disclosure of documentary evidence is going to be a key aspect of the dispute. This article provides a brief summary of the basis for disclosure, and some top tips on how to make sure you stay on top of it.

What is disclosure?

Disclosure is an ever changing area of law at the moment, and the requirements will be specific to your case, and will be subject to what the judge has ordered in your matter. As a general rule, depending on the size of your dispute, you will likely be ordered to either:

  • Disclose documents you intend to rely on no later than 14 days before the hearing (small claims matters, up to £10,000);
  • Disclose documents on the standard basis – being documents which support your case, adversely affect your case or support the other sides case (fast track matters, £10,000 - £25,000)
  • Disclose documents confined to specific matters identified by the court, and documents within those matters which support your case, adversely affect your case or support the other sides case (multi track matters, over £25,000 or too complicated for fast track)

What is clear from the above, is that the orders of the Court can change from one case to another depending on the circumstances. You should seek legal advice if you are not sure what your disclosure obligations are.

What should I disclose?

You should disclose any and all documents which fall within the categories ordered by the court. Documents is defined as ‘anything in which information of any description is recorded’. This will encompass notes of telephone conversations, minutes of meetings, email exchanges, written letters, sketches, photographs, accounts, bank statements, photographs, computer disks or tapes; or something as wide as items of clothing which may have information to be relied upon such as a substance on a shoe. Essentially this includes anything which contains information upon what has occurred within the subject matter of your case and what is claimed.

What are my obligations?

You are obliged to conduct a reasonable search for all relevant documentation. The extent of this search will depend upon the number of documents involved, the nature and complexity of your case and how easy and/or costly it may be to retrieve the information.

The more important a document, to either your case or the other party’s case, the more time and effort you are expected to put in to finding it.

You should consider searching both hard copy documents and electronic documents. The disclosure statement you will provide to the court will include an option to set out the electronic searches you have carried out, including the key terms which you have searched for.

Privileged documents

There are some documents which are “privileged” or attract “privilege” and do not need to be disclosed. These include documents produced for the purpose of litigation, and also any correspondence between you and a solicitor relating to legal advice.

What happens if I don’t disclose something?

If you fail to disclose something and later seek to rely on it at trial, then it is very possible that the judge will disallow such a document to be relied upon. If a judge does allow the document to be included, then he will only attach such weight to the evidence as he considers appropriate, given the failure to disclose the document.

This can have a huge impact on your claim, and can be the difference between winning and losing. You can also be penalised by the Court for failure to disclose by being made subject to a wasted costs order, or generally being ordered to pay the other sides costs.

What happens if I don’t disclose anything?

If you do not file the disclosure statement with the Court and serve it on the other party within the time limits set out by the Court, then you risk having your claim struck out for being in breach of a Court Order. This will mean that your claim is no longer capable of proceeding to trial, without further applications being made.

If this happens, you risk receiving substantial cost sanctions against you in punishment for your actions and in satisfaction of any steps taken by the other side which are no longer required.

Statement of truth

The Disclosure Statement contains a Statement of Truth. By signing the statement, you are assuring the Court that what is contained within the Disclosure Statement is a true and accurate reflection of the searches carried out and the documents located as a result of that search. 

If you sign a statement of truth and are later found by the Court to have not been telling the truth, you can be held in contempt of court.  This can lead to imprisonment.

Seek legal advice

Disclosure is a vital part of litigation, and the importance of it is clear. If you fail to disclose, you risk not being in a position to evidence your claim, or at its worst, risk being in contempt of court and having your case struck out. Time should be taken to make sure that the disclosure you have carried out is proper. 

About the author

Matthew Goodwin

Associate-Solicitor-Advocate

As an associate within the tax and financial services litigation team, Matthew regularly acts for corporates and individuals, dealing with a variety of disputes.

Matthew Goodwin

As an associate within the tax and financial services litigation team, Matthew regularly acts for corporates and individuals, dealing with a variety of disputes.

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