Disclosure of Documents | Civil Procedure Rules
‘Disclosure’ is the process followed during the course of court proceedings to ensure that all parties are fully aware of all documents that are available which may have a bearing on the case which they are contesting and that they are produced.
The description ‘document’ is very wide and includes all forms of recorded information, not just writing on paper but, for example, pictures, emails, mobile phone texts, social networking messages and video-clips.
Over recent years, focus on ‘Disclosure’ has intensified in both the civil and criminal courts to ensure that not only are the parties competing on a level footing, to the extent that no party is deliberately and unfairly withholding relevant evidence from another but that if such activity subsequently becomes apparent throughout the course, for example, of a long expensive trial, the defaulting party is not only excluded from benefiting from such misconduct but, more likely than not, will suffer the consequences of their case being dismissed plus costs penalties.
Kangs Solicitors has been involved, on behalf of clients, in many court proceedings where opposing parties have failed to meet the exacting requirements of Disclosure to the extreme detriment of their case.
Stuart Southall of Kangs Solicitors considers the potential nature of a typical dispute arising from a commercial transaction which, if not resolved amicably, proceeds through the courts where the requirements for Formal Disclosure may become operative.
The very description ‘commercial transaction’ immediately implies that detailed formal documentation has been prepared to record the exact detail of that which has been agreed in the form of a ‘Contract’.
Such a document will be designed to set out, in clear and unambiguous terms, the complete agreement between the parties. However, such formal practicalities may be overridden by the pressing need to fulfil the contract by, for example, ‘meeting’ important compliance dates where failure to do so may adversely impact on subsequent works to be undertaken within the contract.
In such circumstances, where there is no time to have a formal contract prepared, parties may merely rely upon the ‘Framework’ or basis of the agreement which they intend to formalise.
Given the plethora of technological means by which negotiations and discussions are conducted a ‘Framework’ may represent input and be recorded from different sources.
Whilst all of these permutations will, ideally, be retained and ultimately support the ‘Framework’ under which the proposed contract has been fulfilled, inevitably contracts are not always satisfactorily concluded, disputes follow with a satisfactory resolution reliant upon the ‘Framework’ information being readily available and voluntarily produced. In the event of failure to amicably resolve the dispute, such evidential material will, during any subsequent court proceedings, be required to be produced as the result of the ‘Disclosure’ process.
The Team at Kangs Solicitors has vast experience in dealing with disputes at all levels of the Court system and deals with a wide range of business disputes, which include:
- Breach of Contract
- Franchising disputes
- The quality of goods
- Proprietary Interests (in goods or money)
- Retention of Title
- Intellectual Property, Trade Marks, Copyright and Patents
- Trade Mark Prosecution before the UKIPO
- Exploitation of Intellectual Property Rights
- Norwich Pharmacal / Bankers Trust Applications
For an initial no obligation discussion, please contact our team at any of the offices detailed
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0121 449 9888
0161 817 5020
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Disclosure Procedure | Kangs High Court Disputes Solicitors
- Disclosure is an essential and obligatory procedural step to be attended to by all parties whilst preparing a case for Trial.
- The vast majority of the detailed requirements for Disclosure appear within Part 31 Civil Procedure Rules (‘CPR’) although such requirements can be affected by the Track the litigation is proceeding through i,e. Small Claims, Fast or Multi Track and/or the Court which will ultimately hear the Case.
- Additionally, specialist courts, such as Business & Property Courts often order a specific ‘model’ of disclosure that the Parties have to follow.
- Where an agreement can be reached, in this regard, it is preferred that the Parties reach that agreement. This element of disclosure is set out in Practice Direction 57AD of the Civil Procedure Rules.
- However, for matters that are not subject to a specific disclosure model, Part 31 CPR is a ‘catch all’ in terms of disclosure and what should be provided by a Party. The general view is that unless a document is covered by legal privilege, then the document is disclosable.
Part 31 Civil Procedure Rules – Disclosure and Inspection of Documents
These Rules, which are very comprehensive, include the following.
Meaning of disclosure
(2) A party discloses a document by stating that the document exists or has existed.
Right of inspection of a disclosed document
(1) A party to whom a document has been disclosed has a right to inspect that document except where –
(a) the document is no longer in the control of the party who disclosed it;
(b) the party disclosing the document has a right or a duty to withhold inspection of it,
Meaning of document
‘document’ means anything in which information of any description is recorded; and
‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly
(1) In all claims to which rule 31.5(2) does not apply –
(a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise;
(b) the court may dispense with or limit standard disclosure; and
(c) the parties may agree in writing to dispense with or to limit standard disclosure.
(2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multi-track claims, other than those which include a claim for personal injuries.
Standard disclosure – what documents are to be disclosed
31.6 Standard disclosure requires a party to disclose only–
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction
- The obligation to disclose a document is irrespective of the content of the document and the ‘damage’ that the disclosure may do to your case.
- You cannot simply choose to not disclose a document that damages and/or refutes the argument you have advanced in your Statement of Case.
- If the document is relevant to the active dispute, there is an obligation to disclose that document. Failure to make such a disclosure can often have significant consequences.
Duty of disclosure limited to documents which are or have been in a party’s control
(1) A party’s duty to disclose documents is limited to documents which are or have been in his control.
(2) For this purpose a party has or has had a document in his control if –
(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it.
The obligations under disclosure are not limited to documents that are directly within your control, but documents that may be capable of being in your control. It is important therefore to ensure that searches have been properly performed.
Where you only hold copies of specific documents, you need to advise that you only hold copies and why.
Duty of disclosure continues during proceedings
(1) Any duty of disclosure continues until the proceedings are concluded.
(2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.
- Disclosure is a continuing obligation which does not expire until the commencement of the Trial. The onus continues to be with the parties to ensure that they disclose all documents as required by the Rules.
It is important to ensure that all relevant documents are stored correctly and are readily accessible and producible.
- Additionally, copies of all documents produced by servers, email accounts, storage facilities (such as DropBox, Google Drive) should be retained. Quite often metadata is also disclosable and should be disclosed, where appropriate.
Consequence of failure to disclose documents or permit inspection
A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.
How Can We Assist | Kangs Commercial Disputes Solicitors
Whilst it may seem perverse to be required to disclose a document that is not necessarily beneficial to your case and there will be a natural reluctance to do so, as will be seen from this article, the Rules require strict compliance.
It is, of course, the case that disclosure is designed to assist all parties and it may easily occur that a document is produced by your opponent about which you were unaware.
Mutual understanding of the basis of the dispute may narrow down the points in dispute which, in turn, may reduce the duration and costs of any trial.
The requirements of disclosure are detailed and, potentially, very expensive if not complied with. It is essential that you seek the advice and guidance of experienced lawyers to guide you through the examination and selection of all relevant material for disclosure.
The Team at Kangs Solicitors is highly experienced in handling all procedural aspects of any Court litigation, including the Part 31 CPR requirements, and we will be happy to assist you.
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