When involved in a dispute, you may expect to share documents that support your position. But what happens if an email, message or internal record undermines your case?
In civil litigation in England and Wales, standard disclosure can require parties to disclose both helpful and unfavourable documents. Understanding this obligation is essential when preparing for proceedings.
What is standard disclosure?
Disclosure means stating that a document exists or has existed. Inspection is the separate step of allowing another party to examine it or obtain a copy.
Where standard disclosure applies, CPR 31.6 requires parties to disclose:
- Documents on which they rely.
- Documents that adversely affect their own case.
- Documents that adversely affect another party’s case.
- Documents that support another party’s case.
- Documents required by a relevant practice direction.
Do I have to disclose documents that harm my case?
Yes. A document cannot be withheld simply because it is unhelpful.
For example, a supplier claiming that goods were delivered on time may hold an internal email acknowledging a delay. That email may need to be disclosed even though it undermines the supplier’s position.
The duty is owed to the court. Parties should give their solicitor potentially relevant documents, including unfavourable material, so that disclosure obligations can be assessed properly.
How extensive must the search be?
A reasonable search does not necessarily mean checking every historic file or electronic record. What is appropriate will depend on the dispute, including the likely importance of the documents and the time and cost involved in finding them.
For example, searches might focus on correspondence from a particular period or records held by people involved in the events. Any limits must be justified and explained in the disclosure statement.
Our litigation team can guide clients on where to look and how to carry out searches that meet their disclosure obligations.
Can any documents be protected from inspection?
Certain confidential communications may be protected by legal professional privilege. These include communications between you and your lawyer mainly for seeking or giving legal advice, and communications with third parties mainly for conducting existing or reasonably contemplated litigation.
Where privilege applies, you can generally withhold the contents from inspection, although the documents must still be identified appropriately in the disclosure list. An existing document does not become privileged simply because you send it to your solicitor.
What should parties remember?
The duty continues until proceedings conclude. If further documents falling within that duty come to light, the other parties must be notified immediately, normally through a supplemental disclosure list.
Our experienced litigation team can guide you through the disclosure process, helping you understand your obligations and identify the documents that need to be disclosed. Contact us today to discuss your matter.
This article explains standard disclosure under CPR Part 31. The applicable disclosure requirements depend on the proceedings and the court’s directions.