The importance of disclosure in civil litigation
Wednesday, 16 June 2021
What is Disclosure?
In general terms, disclosure refers to the part of the litigation process where each party is required to make available to the opposing party, all documents, whether in support or adverse of its case, which are relevant to the dispute. The process is a key element in all civil actions to ensure that the parties are effectively “laying their respective cards on the table”.
The Disclosure process is defined within Part 31 of the Civil Procedure Rules (“CPR”), which sets out rules about the disclosure and inspection of documents.
CPR 31.2 outlines the meaning of disclosure as “a party discloses a document by stating that the document exists or has existed.”
CPR 31.3 then goes on to establish each party’s right to inspect any document that has been disclosed unless the document is no longer in the disclosing party’s control, or the disclosure of such document is considered to be disproportionation.
Parties involved in litigation are often encouraged at an early juncture to agree the scope and retention of essential documents relevant to the dispute. In times of technological advancement, the parties are also to consider the retention of electronic documents which are stored on and off site, databases and cloud bases, which often can be disputed in themselves.
The Procedure of Standard Disclosure
For most Fast-Track and modest value Multi-Track cases (not subject to the Disclosure Pilot Scheme operating in the Business Property Courts in England and Wales which is discussed below) the Court generally orders the parties to engage in Standard Disclosure.
CPR 31.10 sets out the procedure for Standard Disclosure. Each party must make and serve on every other party a list of documents which identify the documents in a concise manner.
The list must confirm which documents are within the party’s control that are disclosable, the documents within the party’s control but the party is claiming a right, such as legal professional privilege, which would allow a party to withhold disclosure of such document, and which documents are no longer in the party’s control together with an explanation as to what happened to those documents.
Most importantly, the disclosure list must contain a disclosure statement which sets out the extent of the search conducted to locate the disclosure documents, that the certifier understands the duty to disclose documents and that the duty has been carried out to the certifier’s best knowledge.
Given that the scope for standard disclosure is very wide, the extent of the search undertaken by a party and the sheer volume of documents that may be disclosed due to their relevance to the dispute, can mean that the disclosure process can be very time consuming and costly for the parties and legal representatives involved. The Court encourages the parties to always be mindful that the costs associated with disclosure should be proportionate to the value of the claim.
The Court can impose serious sanctions on a party who does not comply with the disclosure obligations outlined in CPR 31.
Before commencing Court proceedings, CPR provides important Pre-Action Practice Directions which include while notifying and responding to notice of a potential dispute or claim, that importance of preservation of documents. Key documents such as contractual agreements, receipts, photographs, and documents are encouraged to be provided to establish a party’s position and to narrow the issues of the dispute from the onset.
A party is able to apply to the Court for disclosure before Court proceedings have been issued, in instances where the respondent party is likely to be a party to subsequent proceedings and the applicant is also likely to be party to those proceedings. This can assist a party to clarify its claim and to force the opposing party in such circumstances to show its hand early on, which can assist in early dispute resolution, without recourse to issuing proceedings and to save costs.
The Disclosure Pilot Scheme
The majority of high value and largely complex commercial disputes are generally heard in the Business and Property Courts in England and Wales. On 1 st January 2019 the Disclosure Pilot Scheme for disclosure in the Business and Property Courts (“The Pilot Scheme”) commenced. Governed under Practice Direction 51U, the Pilot Scheme became applicable to all cases issued in and transferred into the Business and Property Courts as of 1 st January 2019.
The Pilot Scheme aims to make disclosure more proportionate, case specific and efficient. The disclosure process in reality has now become front loaded where the parties are to provide “initial disclosure” of key documents together with services of statements of case.
The Pilot Scheme also specifies rules in relation to the parties document preservation duties, which include suspension of document deletion or destruction processes, sending written notification to relevant employees and former employees if there are reasonable grounds to believe that they have documents which the party does not have in its possession.
After Initial disclosure, the parties are to then indicate if they wish to seek further disclosure on particular issues they have identified in the case, with the parties also suggesting which of the models of disclosure they intend undertake, in the form of a Disclosure Review Document.
The Models of disclosure available for the parties to select are:
- Model A – disclosure limited to known adverse documents
- Model B – disclosure of key documents on which a party relies, or which are necessary to enable other parties to understand that party’s case, plus known adverse documents
- Model C – request-led search-based disclosure, that is disclosure of particular documents or narrow classes of documents requested by the other party, for which the disclosing party must search
- Model D – disclosure requiring a search for documents likely to support or adversely affect any party’s claim or defence in relation to the issues for disclosure. The Court will specify whether “narrative documents”, relevant only as part of the background or context, need to be disclosed.
- Model E – wide ‘train of enquiry’ disclosure available only in an exception case, such as some fraud cases
The Court after considering the parties requests for disclosure and the identified models as contained in the Disclosure Review Document, will then make an order known as “extended disclosure” usually at the first Case Management Conference. The Court will in particular have regard to proportionality and costs associated with the scope of extended disclosure.
The parties would then conduct a search for documents depending on the models of extended disclosure ordered and would then produce a list of any extended disclosure documents and provide the parties copies of the documents.
The Pilot Scheme has generally been regarded as a success over the past two years, with the Courts directing the parties to focus on proportionality and to consider the costs associated with disclosure. By narrowing the scope of disclosure to the various models, the parties are able to concentrate their efforts to obtain documents on key issues, rather than production of all documents as seen in standard disclosure.