Bates Wells Braithwaite’s
Guide to Disclosure
About this guide
This guide summarises your obligation to preserve
and disclose documents in civil litigation. As
solicitors and officers of the Court, we are under a
duty to ensure that our clients fully understand their
obligation to give proper disclosure, and that they
fulfil that obligation.
What is “disclosure”?
Disclosure is the term given to the stage of the
litigation process when each party is required to
inform the other side of the existence of all
disclosable documents that are or have been in their
possession and/or control.
(b)
you have or have had a right to possession of
it; or
(c)
you have or have had a right to inspect or
take copies of it.
Disclosure can be a lengthy and time consuming
exercise, and often involves a significant amount of
management time. Therefore, before you begin
searching you ought to carry out a thorough review
of the statements of case (the Particulars of Claim,
Defence, any Reply served, and any Counterclaim
and Defence to Counterclaim) to identify all the
issues in dispute between the parties, as those
issues will form the parameters of your searches.
What is a “document”?
You are required to disclose:(a)
documents on which you rely;
(b)
documents which: (i) adversely affect your own case; and/or
(ii) adversely affect another party’s case;
and/or
(iii) support another party’s case;
(c)
documents which you are required to disclose
by a relevant Practice Direction.
Your duty to disclose is limited to documents that
are or have been in your control. This means that:(a)
the document is or was in your physical
possession; or
For the purposes of disclosure, a “document” is
anything in which information of any description is
recorded. The definition is very broad, and is not
limited to written communications, but also includes
photographs, plans, drawings, DVDs, video and
sound recordings, video and cinematographic film,
micro-films, computer tapes and discs, computer
print-outs, e-mails and their attachments, meeting
notes, and diaries (including electronic diaries).
Information stored electronically has always been
included in the definition of “document”, but the
Courts now place particular emphasis on the
importance of disclosing electronic documents.
Electronic documents include not only those
documents readily available on computers,
Blackberries, PDAs, mobile telephones and other
end user devices (e.g. emails and texts messages),
but also those stored on servers and back-up
Bates Wells Braithwaite’s Guide to Disclosure
systems, deleted documents, and the “metadata”
relating to particular electronic files and documents.
What constitutes a reasonable search for
disclosable documents?
The parties are required to carry out a reasonable
and proportionate search for disclosable documents,
which can generate a substantial amount of work for
both the client and their advisors.
You cannot rely on any document which you do not
disclose or which you fail to permit inspection of,
unless the Court orders otherwise.
Failure to give proper disclosure (including failure to
carry out appropriate searches) can amount to
contempt of court and may have serious
consequences, including dismissal of your claim or
entry of judgment against you.
Searching for e-documents
Factors relevant when deciding the reasonableness
of a search include the following:(a)
the number of documents involved;
(b)
the nature and complexity of the proceedings;
(c)
the ease and expense of retrieving any
particular document; and
(d)
the significance of any document which is
likely to be located during the search.
For electronic documents, consideration should also
be given to:(a)
how accessible the documents are;
(b)
their location;
(c)
the cost of recovery;
(d)
the likelihood of locating relevant data; and
(e)
the likelihood that documents may be
materially altered by the disclosure process.
If you do not search for a particular category or class
of document on the grounds that to do so would be
unreasonable or disproportionate, this must be
stated and explained in the disclosure statement
contained within the formal document by which
disclosure is given (the “list of documents” – see
below).
In the vast majority of cases, the parties will have edocuments to disclose. As already discussed,
e-documents are not limited to emails and other
documents readily available on electronic devices,
but also include documents and information stored
on servers and back-up systems, deleted documents,
and the “metadata” relating to particular electronic
files and documents.
The parties are required to co-operate regarding
e-disclosure at an early stage. This includes raising
any issues concerning searches for and preservation
of electronic documents in their control, and
providing details of the types of electronic
documents in their control, the systems on which
they are stored, and the document retention policies
in operation.
In certain circumstances, when searching for
e-documents, it may be reasonable to only carry out
“key word” searches, or to not search all of a given
electronic storage system. If possible, the scope of
the searches to be carried out should be agreed
between the parties, and this should be done prior
to the first Case Management Conference as the
court will want to know what has been discussed
and agreed regarding e-disclosure.
Searching for e-documents is often a substantial and
therefore expensive stage of the litigation, and in
large or complex cases it is often more cost-effective
for the searches to be carried out by a specialist
provider, arranged by your solicitor.
Failure to act positively on a request for
e-disclosure may lead to substantial costs penalties.
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Bates Wells Braithwaite’s Guide to Disclosure
Best practice
Privileged documents
As soon as litigation seems likely, you must stop any
routine destruction of documents that might be
relevant to the case. This includes the routine
deletion of computer records, especially e-mail.
If a document is privileged, the other side will not be
entitled to view it, take a copy of it, or even have a
description of it.
Documents damaging to your case must not be
destroyed under any circumstances. In some cases,
it may be sensible to take images of computers and
servers to ensure that documents are preserved.
Preservation of documents will avoid you having to
incur the cost of recovering any deleted documents
which you are later obliged to disclose
You should ensure that all those within your
organisation who have or may have disclosable
documents are made aware of your disclosure
obligations as soon as possible. If you are in any
doubt whether a document is disclosable, you
should immediately raise the matter with the
solicitor dealing with your case.
Privileged documents are essentially those
documents that come into existence:(a)
(i) correspondence between solicitors and
their clients; and
(ii) correspondence between solicitors and
third parties in connection with the
litigation;
or
(b)
Because disclosure is a substantial task in any
litigation, all relevant documents should be sought
and identified at the earliest opportunity, and well
before the deadline for providing formal disclosure.
Your search should extend to:(a)
documents in all your locations;
(b)
documents in storage; and
(c)
all copies of a document.
You need not disclose more than one copy of a
document, unless a copy contains a modification,
obliteration or other marking or feature on which the
party intends to rely, or which supports another
party’s case or which could adversely affect his own
or another party’s case. In that case the “copy”
document is treated as a separate document.
Where possible, the originals of all disclosable
documents should be made available.
for the purpose of giving or obtaining legal
advice, such as:-
for the predominant purpose of bringing or
defending actual or contemplated litigation,
such as:(i) witness statements obtained for this
purpose; and
(ii) letters to third parties to gather
information for this purpose.
The following are examples of documents that will
not be privileged, unless they can be brought within
one of the above categories:(a)
internal memoranda, even if confidential;
(b)
board minutes;
(c)
notes to accounts;
(d)
correspondence with other professional
advisers (such as accountants and, often,
insurers) or the police or other authorities.
Care should therefore be taken to ensure that if such
non-privileged documents are created or obtained
after proceedings are contemplated or commenced,
they contain nothing that could prejudice your case.
If in doubt, you should take legal advice before the
document is created or obtained.
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Bates Wells Braithwaite’s Guide to Disclosure
Requests for documents or other assistance from
third persons should usually be directed through
your solicitor so that privilege is maintained for such
communications. Privilege can be lost if you show
privileged documents to third persons.
“Without prejudice” correspondence is
correspondence arising in connection with settlement
negotiations. Such correspondence cannot be
produced to the court before judgment, but it is not
usually privileged. Please see our Guide to the
without prejudice rule and Part 36 offers.
Use of documents
Documents in your possession and those obtained
from the other party(ies) through disclosure can be
used as part of the evidence you present to the
Court to support your case (known as “witness
statements”).
They can also be used in any settlement
negotiations, and parties often assess the merits of
their case once disclosure and inspection have been
completed in case disclosure has materially affected
their prospects of success.
Lists of documents
Once all disclosable documents have been identified,
they need to be organised into a chronological list
and given a short description (e.g. “email from X to
Y entitled ‘outstanding invoice’ dated 10.06.2010”).
The list will also indicate those documents which
you claim are privileged (see above), and those
documents that are no longer in your control
(including an indication of what has happened to
them).
Once both parties have finalised their lists and
signed a statement to confirm the extent of the
searches carried out and that they understand and
have complied with their duty to disclose, the lists
will be exchanged so that both parties see what
documents the other side has.
Inspection
Once lists have been exchanged, the parties will be
entitled to inspect and take copies of the originals of
the disclosed documents, except privileged
documents. Inspection would normally take place at
the offices of the parties’ solicitors unless that is
impractical, however it is common practice for the
parties to simply ask for copies of those documents
they wish to see, rather than inspect the originals.
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However, it is important to understand that
documents and information obtained from the other
side through the disclosure process must not be
used for any purpose other than the litigation in
question. All members of staff to whom such
material may be communicated must be warned
against misuse. Misuse could amount to contempt of
Court, which could lead to a fine or imprisonment.
Continuing obligation to disclose
The obligation to give proper disclosure is a
continuing obligation, and documents which are
found or which come into existence following
exchange of lists must be disclosed. This duty of
disclosure continues until the proceedings are
concluded.
If a disclosable document comes to your notice at
any time during the proceedings, you are obliged to
notify every other party immediately. Such
documents are normally disclosed to the other
party’s solicitors in a supplemental list of
documents.
Bates Wells Braithwaite’s Guide to Disclosure
About us
Our experienced dispute resolution lawyers represent
Claimants and Defendants in a wide range of
contentious matters in both the High Court and
County Court, and can advise you on every aspect of
your case.
If you have any questions about this guide or any
other matter, please do not hesitate to contact one
of the following members of our Dispute Resolution
Group at [email protected] or
individually at:Malcolm Robson
Rob Oakley
Alex de Jongh
Leticia Jennings
Liz Goulder
Mindy Jhittay
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
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Bates Wells & Braithwaite London LLP
2-6 Cannon Street, London EC4M 6YH
DX 42609 Cheapside 1
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E: [email protected]
© Bates Wells & Braithwaite London LLP
The information in this guide is of a general nature and should
not be relied on in place of legal advice appropriate to your
circumstances.
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