"All cards on the table"

 – the litigant’s duty of disclosure and inspection

 

DRAFT

The information herewith gives general guidance. It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations. Read our full legal notice on the left.

 

It was Sir John Donaldson who said “litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information [emphasis added], it cannot achieve this object” (Davies v Eli Lilly & Co [1987] 1 All ER 801).

   
Making information available to the court and the parties to a claim has it genesis in equity, but  the process of “discovery” which arose and developed from the early appeals to Henry VIII’s Lord Chancellor’s has now become “disclosure”.  It is still, however, considered an important element of the litigation process with the myriad of benefits that can be achieved from an early exchange of information.  For the litigant (whether as claimant or defendant), an understanding of this essential part of the litigation process is a vital, if not integral prerequisite in conducting his/her case.


Generally all parties to civil proceedings in England and Wales have a duty both to disclose documents (subject to some very narrow exceptions) and also to allow their opponents (again with exceptions) to inspect and/or take copies of those disclosed documents. 


Disclosure is merely the formal statement that a “document exists or has existed” (CPR 31.2), but in the context of disclosure, it is important to remember that a document is “anything in which information of any description is recorded” (CPR 31.4).  This would include written documents, audio tapes, videotapes, photographs, as well as electronic documents (emails, WP documents, and databases)  as well as   electronic material not readily accessible (for example, electronic documents stored on servers and back-up systems) as well as electronic documents which have been deleted.   However, it is also important to appreciate that it is the information contained within the document and its relevance to the issue(s) in dispute that determines whether or not a document is disclosable.


Historically, discovery used to be a very prescriptive process for the parties.  Now, however, it is the court which decides on a case by case basis how disclosure & inspection will operate in the circumstances of that particular case, limiting it to the minimum needed to achieve the overriding objectives of recent civil litigation reforms – allowing a matter to be dealt with justly as well proportionally. 


Despite the court’s more hands on involvement, the extent of the litigant’s obligation in relation to disclosure should not be underestimated.  The court operates under the principle of “all cards on the table” and it is anticipated that as a result of disclosure/inspection any document that is to be used or discussed at trial will, at some time before that trial, have been made available.   It may come as a surprise to a litigant to find out that disclosure and inspection can extend not only to those documents that are to be used at trial (supporting a claim), but also to documents that contain information adversely impacting that claim or actively supporting an opponent’s case.

  As a result, as soon as litigation becomes a possibility, the litigant is under an obligation to ensure that all documents relevant to the issue(s) of the case are safeguarded; this will involve considering the necessary searches for the relevant documents and the subsequent retention and filing of those documents (whether in written or electronic format).


Once proceedings have been issued, the approach to be taken in relation to disclosure will depend, to a certain extent, on the track a case is on and whether electronic documents are to be disclosed.  However, deciding the extent and the timing of any disclosure obligation is at the court’s discretion and is the first opportunity for the court to be actively involved in the conduct of the case itself.


Small claims track cases are not covered by the CPR and the approach to disclosure requires that the parties file and serve on every party copies of all the documents being relied on in the hearing.  This disclosure should take place at least 14 days fixed for the final hearing.


For litigants involved in fast track claims or multi-track claims involving a personal injury claim, the requisite procedure for disclosure is not so pre-determined – it requires an order from the court (usually given after the initial case management conference).  Parties are normally ordered by the court to undertake “standard disclosure”, although this will largely depend on the answers the parties have provided in a disclosure questionnaire which the parties need to submit early in the proceedings.  What does “standard disclosure” involve for the parties?  It obliges the parties to conduct a “reasonable and proportionate” search (in terms of the nature and value of claim, the costs involved, the ease of retrieval and significance) for relevant documents.  It, then, requires disclosure of:-


(a) documents being relied upon,
(b) documents which adversely impact both on the party’s own case and that of its opponent, and
(c) documents which support the opponent’s case. 

It is, however, only documents which are within a party’s control (which means in a party’s physical possession or to which a party has a right to access, or a party had previously, but no longer) that need to be disclosed.


For multi-track claims (all those not involving a PI claim), the approach to disclosure has recently (April 2013) undergone change.  For these claims, “standard disclosure” is no longer the default approach.  Instead, not less than 14 days before the first case management conference (the CMC), both parties are required to file and serve a disclosure report.  Further, not less than 7 days before that CMC, parties are required to discuss their respective reports to try to agree a proposal for the appropriate disclosure approach to be used for the case (see below).
The disclosure report (which is in a standard format – N263) provides information on:-

  1. all the documents which exist that are relevant to the matters in issue (for the litigants, this means that all the relevant personal need to be involved at an early stage in identifying these documents and where they are located);
  2. details as to how and where any disclosable electronic documents are stored (if there are electronic documents to be disclosed there are further associated disclosure requirements imposed on the parties not being discussed in this paper);
  3. an estimate of the likely costs to achieve “standard disclosure”, as well as an estimate of the likely costs if another approach is to be proposed;
  4. the disclosure order sought from the court – there are a number of options available for the parties and the court to consider, ranging from no disclosure at all to “any order the court considered appropriate” (See CPR 31.5(7) for full details  of all the options).    As there is no default option in deciding how to proceed, there is considerable flexibility in the possible outcomes.  Litigants will have to consider for themselves, and with their opposition, what type of disclosure is actually necessary given the issues and the nature of the claim. 

 

Notwithstanding the parties’ proposals in their reports, it is the court that will ultimately decide what order to make– seeking to limit disclosure to that which is needed to deal with the case fairly, efficiently and proportionately in relation to costs.  However, there are likely to be significant advantages in the parties reaching an agreement (proposing the favoured option, budgeting and costs management at an early stage).


Both “standard disclosure” and a N263 “disclosure report” require the litigant to validate the disclosure by a statement of truth.  This statement of truth confirms the extent of the searches that have been undertaken to locate documents, as well as the litigant’s understanding of extent of the duty of disclosure and their reasonable belief that this duty has been discharged.


Irrespective of the track being used for the claim, there can be serious implications in giving an inaccurate statement of truth in relation to disclosure or failing to disclose (or not allowing inspection).  A party may not be able to rely on that undisclosed document at trial without the court’s consent.  Additionally, failure to comply with the disclosure order which the court ultimately hands down can lead to sanctions against the relevant party – for instance in relation to judgment costs, or the court striking out a claim due to non-compliance.  Further, in some cases, people have been held in contempt of court for failing to disclose information relevant to the matter.


The process of disclosure (whether “standard” or otherwise) is usually undertaken by way of an exchange of lists of the documents (although, it is possible for the court to dispense with this requirement).  Each party is responsible for the preparation of their own list.  There is a Practice Direction (PD 31A) providing details of the form of the list (documents to be in date order, numbered consecutively, concisely described, assuming that the original is available unless stated otherwise) and its three parts:-

  1. documents within the party’s control and to which there is no objection to the other party’s inspection (sufficiently described to enable the other party to decide whether or not to inspect);
  2. documents within the party’s control, but to which there is an objection to the other party’s inspection and the nature of that objection;
  3. documents which the party previously had, but no longer has, within their control (and why).

When compiling the list, a litigant should give equal consideration to whether or not a document should be disclosed (i.e. making your opponent aware of its existence) and to whether inspection of that disclosed document should be given.  There is a significant difference between making a decision not to disclose a document at all and disclosing that document, but making it unavailable for inspection.


Given the aims of disclosure and its “all cards on the table” foundation, not listing a document is a serious matter and is usually permitted only where, for example, disclosure is contrary to the public interest or the costs involved in disclosing would be disproportionate in relation to the sums claimed.

 
Although the CPR confirms a party’s right to inspect a disclosed document (CPR31.3), it can be seen from the tripartite format of the list outlined above, the disclosing of a document does not automatically give rise to a right to inspect that document.  There are a number of circumstances where a party can prevent inspection:-


(a) where inspection is not possible as a matter of fact because a party no longer has the document within their control,
(b) allowing inspection would be disproportionate, and
(c) there is a right or duty to withhold inspection.

The latter circumstance usually involves a claim of privilege, whether legal advice, litigation or public policy (there are numerous discussions and issues in relation to privilege beyond the scope of this paper) or an obligation of confidentiality to a 3rd party.

 
It is possible for a party to challenge the disclosure provided by their opponent.  For instance, it is possible to challenge an opponent’s claim to withhold inspection  (under CPR 31.19).

 
Additionally, if the disclosure itself is believed to be insufficient, a party can apply to the court for an order of specific disclosure (under CPR31.12).  The court will be looking for an inadequacy in a party’s disclosure, for instance, important documents which it is known existed are not disclosed, there are gaps in the chronology of a list of documents, an insufficient search has been undertaken to locate relevant documents.  Even those parties involved in the small claims track are able to apply for specific disclosure, although there will need to be compelling reasons for doing so, given the likely impact on costs such an application would have.

 
There is extensive guidance available to litigants on how to approach such a challenge (both as applicant and respondent).  However, it is at the court’s discretion as to whether such an order will be given and issues such as evident inadequacy, importance and relevance of documents in question, cost of compliance, conduct and/or financial position of the parties and the amount at stake will underpin the court’s decision-making process.  If the court does give such an order, there will also generally be an associated sanction to ensure compliance (for instance, in relation to costs or striking out of the claim itself if there is non-compliance, an “unless order”).

   
Disclosure and inspection generally takes place at an early stage in the proceedings.  However, it should be remembered that the duty to disclose and allow inspection continues until judgment or settlement.  Documents that come to a party’s attention after initial disclosure and inspection has taken place need to be disclosed immediately (CPR31.11). 

There is a current perception that as a result of the Jackson reforms, there will be a stricter approach in requiring compliance with court orders and directions generally.   When preparing for disclosure and inspection (regardless of claim track), a litigant must be continually aware of his obligations in relation to his document list, prepared to spend time and resources to identify fully and accurately the contents of that list and then to safeguard those contents.  A litigant needs to be mindful of the court’s associated powers and discretions in relation to disclosure and inspection as well as opponents’ rights to challenge an inadequate list.  There is a risk that by not approaching disclosure and inspection fully and in a systematic, planned manner, documents will be missed, resulting in the court not having all the relevant information it needs to be able to do ”justice between the opposing parties” (Sir John Donaldson) and not being happy with the conduct of the claim itself.  A litigant must be prepared to and plan to put all his information cards on the table.  The ramifications of not doing so could be significant.

 

Alison Bicknell

 

The information herewith gives general guidance. It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations. Read our full legal notice on the left.

 

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