What is Disclosure?
In simple terms, disclosure is the process by which each party makes another party aware of the present or previous existence of evidence that either supports or undermines a party’s case.
The rules governing disclosure are set out in Part 31 of the Civil Procedure Rules.
What Must Be Disclosed?
Under the Civil Procedure Rules, the term ‘document’ is given a broad meaning. In the context of disclosure, it means anything in which information of any description is recorded.
A party must disclose any document that supports its own case and any document that might adversely affect its own case.
A party is required to disclose documents that are under its control, as well as documents that were previously under its control but are no longer at the time of disclosure. Documents considered to be under a party’s control include those the party has a legal right to possess, inspect, or copy, as well as documents the party has or had in its possession.
Search Requirements
A party is obliged to conduct a ‘reasonable’ search for documents that are or have been in its control.
What is reasonable will depend on the facts and nature of the case. Among other factors, the difficulty and expense of searching for documents will be considered, as will the potential importance of certain documents that might be uncovered by a specific search.
Inspection of Documents
Following disclosure, each party will have the opportunity to request inspection of any of the documents disclosed by other parties. A request to inspect documents should be made in writing and should identify the specific documents to be inspected. Parties must allow inspection to take place within 7 days of receiving the request.
Where a party is no longer in possession of a document, or a document is subject to legal privilege, that document will not be available for inspection. Parties are required to state why the document is not available for inspection and explain what has happened to the document(s).
Ongoing Duty
Whilst the above sets out the process for disclosure, parties in proceedings are subject to an ongoing duty to disclose documents until those proceedings are concluded. If a document comes to a party’s attention after the initial disclosure process has been completed, they are obliged to notify the other parties in the proceedings about its existence without delay.
Our commercial litigation team at MD Law has years of experience dealing with a wide range of claims, acting for both Claimants and Defendants, in which disclosure has played a vital role. If you require assistance or advice, or wish to enquire about our services, please contact info@mdlaw.co.uk.
