Disclosure in Civil Litigation – An Overview

Monday, October 5th, 2020

This article provides an overview of disclosure, as it relates to Civil Litigation, with a focus on the types of documents that must be disclosed as part of standard disclosure.

Those familiar with civil litigation may have heard the term disclosure before. For those not so familiar, it refers to the stage in proceedings whereby parties exchange documents relevant to the dispute in question.

The rules and procedures governing disclosure are contained in Civil Procedure Rule (CPR) 31 and the related Practice Direction. In brief, the role of the CPR is to regulate the way in which parties conduct litigation in the courts of England and Wales. CPR 31.6 outlines the documents that each party to proceedings must disclose to the other. CPR 21.6 reads as follows;

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 partys case; or

(iii) support another partys case; and

(c) the documents which he is required to disclose by a relevant practice direction[1]

 

A ‘document’ in this context refers to anything in which information of any description is recorded.[2] This is a broad definition, covering anything from letters, emails or photographs, amongst other media.

In order to determine whether a document must be disclosed, the following two criteria must be considered. First, the document in question must be relevant to the dispute. In other words, it must contain information pertinent to any material facts or issues in dispute. Secondly, once you have established the document is relevant, it is subsequently disclosable if it: supports your case; supports the case of the other party; undermines your case; or undermines the other party’s case.

You cannot knowingly withhold disclosable information. An individual can be held in contempt of court, the consequences of which, at worst, may lead to a criminal conviction and a prison sentence. In addition, a solicitor would be in breach of the professional and ethical obligations, if you insisted on this course of action.

Therefore, should you have documents in your control, which are disclosable under CPR 31.6, you must disclose them. If you are in doubt as to the relevance of the document, it is best to disclose this to your solicitor, who can then advise as to whether the document is indeed disclosable.

The obligation to disclose relevant documents remains in place throughout proceedings, not just at the date agreed for disclosure. Should you discover a disclosable document after this, it will need to be disclosed as soon as possible.

Some may ask, “why would I disclose a document that may adversely affect my case?” This is a reasonable question for those unfamiliar with civil litigation. However, unlike in a number of other jurisdictions, litigation in the courts of England and Wales is conducted on an open basis, whereby both parties make available all information relevant to the issues in dispute.

Indeed, without all the information relevant to the dispute, the court cannot achieve its object of achieving ‘real justice’ between the opposing parties.[3]  Furthermore, without having sight of all such relevant documentation , a Judge is unlikely to have full understanding of the issues. Consequently, this would infringe on their ability to reach a fair and just decision and to deal with the case in line with the overriding objective of the CPR.

If you require advice relating to disclosure in ongoing legal proceedings, or assistance with civil litigation or dispute resolution more generally, please do get in contact with a member of our Property Litigation and Dispute Resolution team and we will be more than happy to assist.

 

[1]https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

[2] Ibid.

[3] Davies v Eli Lilly & Co [1987] 1 WLR 428

 

Disclosure in Civil Litigation - Hanne & Co's Jack Glover gives an overview

Jack Glover is a Trainee Solicitor in Hanne & Co’s Property Litigation & Dispute Resolution team