At a certain stage of the proceedings, in, the usual case, you are required to disclose to your opponent the following documents:

Those which support your case;
Those which harm your case;
Those which support the other party’s case;
Those which harm the other party’s case.

Disclosure rules differ in Arbitration and Adjudication and many never take place in Mediation. “Documents” include paper, anything in electronic form such as emails and other data and video or cassette tapes. It will also include manuscript notes and rough workings or draft documents, in addition to any final document. The duty to disclose relevant documents continues until the end of the case.

The most significant documents supporting your case must be disclosed before proceedings are begun.

It is not necessary to disclose all documents potentially relevant to the claim. In fact, disclosing too many documents could lead to costs penalties if the Court considers that such disclosure is “disproportionate” having regard to the value and complexity of the claim. On the same basis, the Court will not order your opponent to make “disproportionate” disclosure.

You must carry out a reasonable search for the documents described above. This includes a reasonable search for any relevant data base(s), since, in this context, emails are treated in the same way as letters or faxes. You may decide not to search for a category of document (for example, those created before a certain date, located in a particular office or held on back up tapes) on the ground that it would be unreasonable or disproportionate to do so. This might apply where there are many documents involved or significant documents are unlikely to be found at a particular office and the claim does not justify the cost of such an exercise. In the case of emails, the fact that relevant emails have been deleted does not take away your duty to disclose them, but the cost of retrieving them from back-up date may justify excluding them from the ambit of your search at the initial stage.

Please ask us if you think it may be appropriate to limit your search so that we can discuss this with you.

The first stage in providing disclosure is to list all documents within the relevant categories, which are now (or have been) in your or your organisation’s control or power and serve that list on your opponent’s solicitors. We must allow your opponent to see and take copies of any documents that are on that list. Your opponent has to do the same. However, having searched for and disclosed the existence of certain documents, it may be appropriate to refuse to allow your opponent to inspect and copy a class or category of documents on the ground that it would be disproportionate to the issues in the case to do so. Certain documents do not need to be disclosed and advice must be taken on which do and which do not at an early stage and before proceedings are issued.

Wherever possible we will need the original documents. Your opponent has a right to see original documents and the Judge may wish to examine the originals at trial. Please do not mark, alter or destroy original documents.

Once a list has been prepared, you must sign a disclosure statement verifying your list of documents and setting out the extent of the search, which has been made. You must also certify that you understand the duty to disclose documents and that to the best of your knowledge you have carried out that duty. Unlike a statement of truth, it is not possible for us to sign a disclosure statement on your behalf. The disclosure statement must also state that you believe the extent of the search to have been reasonable in all the circumstances and draw attention to any reasons limiting the search.

It is essential that from the moment you identify a claim or are given notice of the possibility of one that you should not destroy any document, which could be relevant to the claim. If you have a policy of automatic destruction and/or a document management policy for the deletion of emails and other electronic data, this must be suspended for the duration of the dispute. You could jeopardise the strength of your case if relevant documents are destroyed or deleted. Also, you could be required to retrieve back-up copies of the deleted documents, for example, in the case of emails, getting residual data from a computer or back-up date held by a third party on a server which can be expensive and time consuming. Your opponent will be entitled to see any new documents you create unless those documents refer to the advice that you have received from us on how the case should be run. We, therefore, recommend that you involve us in the formulation of anything relevant to the case, which you may wish to put in writing, including for example, internal memoranda, internal emails or briefings or other meetings.

In addition to ordering disclosure of documents between the parties the Court also has the power to order disclosure from third parties not involved in the dispute if appropriate. There are also opportunities to obtain documents from public authorities under the Freedom of Information Act 2000 as to which we will be happy to advice. Please speak to us if you are unclear about what needs to be done both to comply with the duty of disclosure and your entitlement to receive disclosure.