Disclosure means formally stating that documents or classes of documents exist or have existed. All parties to civil proceedings in England and Wales must give disclosure, subject to some very narrow exceptions. Subject to some very important exceptions, your opponent has the right to inspect and/or take copies of disclosed documents. Privileged documents must be disclosed but may not be inspected.
The timing, nature and scope of disclosure are in the court's discretion, but an order for disclosure will usually be made at the first case management conference. In certain circumstances it may be possible to obtain an order for pre-action disclosure.
Ordinarily, parties will be required to give standard disclosure. This means disclosing documents which support or adversely affect the case of any of the parties to the dispute. The parties must carry out a reasonable search for documents bearing in mind all of the circumstances of the case, the value of the dispute and the overriding objective of dealing with cases justly. The obligation is to search for and disclose documents currently or formerly in a party's control.
Solicitors owe a duty to the court to advise clients of their disclosure obligations and ensure that clients understand them. Parties must be informed of the requirement to preserve all potentially disclosable documents, including electronic documents that would otherwise be deleted (either in accordance with a document retention policy or otherwise).
The obligation to disclose continues until the proceedings are concluded.
Particular care needs to be taken to preserve electronic data. A "document" includes all media on which information is recorded - this includes electronic information, and can in principle extend to deleted data and metadata. Disclosure usually takes place after all statements of case have been served, but sometimes an application for pre-action disclosure may be appropriate. An application against a a third party may be made where the third party holds documents which may be relevant to the matters in dispute.
It is essential to consider privilege, disclosure and document retention at the earliest possible opportunity. The courts will take a dim view of failure to preserve disclosable documents. Where electronic date is deleted or lost, the party who has failed to preserve it may be forced to bear the considerable costs of a data recovery exercise. Worse still, adverse inferences may be drawn by the court against the individual(s) concerned.
We are happy to provide advice on queries relating to disclosure and privilege – please do not hesitate to contact Isobel Milburn (01228 552600 or im@baineswilson.co.uk) who will be pleased to discuss any queries or concerns.
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14 February 2012
