Disclosure in Civil Litigation – what is Disclosure and when does it take place?

What is disclosure?

This is the question many clients ask us who are involved in litigation for the first time.

Many are unaware of the concept of disclosure of documents in litigation. It is vitally important to fully understand disclosure in litigation, as it can play a significant role in the successful progression of claims and it is important to get this right.

The full details regarding disclosure are contained in Part 31 of the Civil Procedure Rules (“CPR”). However, disclosure can be generally defined as the part of the litigation process where each party is required to provide all relevant documents (whether they be physical documents or electronic documents) to the other party. All relevant documents must be disclosed, whether they support your case or the opponent’s case.

However, an important exception to the above is when you are able to withhold a document due to legal or litigation privilege. This would include legal advice or communications between a client or a third party when litigation is contemplated. This is important as disclosure of legally sensitive documents in error can have a significant and detrimental impact on a party’s claim.

When does disclosure take place?

Ordinarily, disclosure will take place at an early stage of civil proceedings (sometimes before proceedings are issued). In lower value claims, each party will be required to file a List of Documents in a process called Standard Disclosure. This List must confirm which documents are disclosable, the documents which are privileged and therefore not disclosable, and documents no longer in the party’s control.

Any disclosure list or report must contain a Statement of Truth which sets out that the signatory (i.e. the person making the statement) understands the duty to disclose documents and that this has been done truthfully. The CPR makes it clear that proceedings for contempt of court may be brought against a person if a false disclosure statement is made without an honest belief in its truth. It is therefore not an option to withhold a document without good reason knowing that such document should be disclosed.

After the respective Lists are disclosed, each party then reviews those Lists and can request documents from each List, which then must be disclosed. This is known as inspection.

Disclosure in higher value cases

In higher value cases proceeding in the multi-track, disclosure will usually be in the form of a disclosure report. Disclosure requirements in higher value claims are more onerous in that there are requirements to describe documents that exist that could be relevant to the matters in issue and where, and with whom, the documents could be located. Parties will also need to estimate the likely cost of searching for and disclosing electronic documents and assess what type of disclosure order will be sought. Parties will set out what they believe to be a proportionate and reasonable cost and time of searching for documents. The Court will then hear submissions and assess to what extent searches for documents should be conducted to balance the cost of litigating with the requirement to obtain a just outcome.

Complex litigation

Commercial litigation that is of a higher value, or is more complex, will ordinarily proceed to the Business and Property Courts (BPC). In these cases from 1 January 2019, disclosure has been governed by Practice Direction 57AD of the CPR, following the success of the Disclosure Pilot scheme. The new rules were put in place to assist in making disclosure more proportionate and efficient. The practical implication of this is to bring disclosure forward in the process by parties providing “Initial Disclosure” when providing their Statement of Case. Parties can then request “Extended Disclosure” if they consider further documentation should be disclosed when completing a “Disclosure Review Document”. In doing so, a party must indicate which one of 5 Disclosure Models they want to choose which vary from a request for Wide search-based disclosure to narrow and more limited disclosure. The success of the Pilot has resulted in this process being approved, and therefore any high value Commercial Dispute will follow this process.

Can disclosure be required before proceedings?

There are occasions when disclosure is required prior to proceedings being issued. These are usually documents which, when disclosed, could lead to potential claims not being required to proceed to litigation, or at least for the number of issues to be narrowed. Examples of such documents would include contractual agreements and receipts. If a party refuses to disclose such documents, a Pre-Action Disclosure application (also known as a ‘PAD Application’) can be made to the Court to force disclosure of those documents. However, this will only be possible where both the party requesting pre-action disclosure and the other party are both likely to be parties to potential proceedings.

This article provides a very brief summary of disclosure and is not intended to be exhaustive.

If you require assistance with a litigation dispute and are currently involved in litigation court proceedings or are expecting to be involved in litigation proceedings, then we please get in touch with the litigation department at RLK Solicitors without delay.

Contact us on 0121 450 7800 or email enquiries@rlksolicitors.com.