Disclosure and Inspection
This guide is to explore in greater detail the process of disclosure and inspection of documentation which are to be relied upon in the proceedings. There would have been some disclosure of documentation prior to the issue of proceedings however, if a matter is not settled and the case is to continue then both parties will have to prepare a formal list of all documentation they each intend to rely on in the proceedings, whether favourable or unfavourable. The parties will be expected to spend a significant amount of time on their list and what documents they are proposing to disclose.
This is an important point in the proceedings as the parties at this point are able to look to see whether they have the documentation in support of the claim and whether or not there are any gaps which need to be filled. It is important that serious consideration is given at this stage of the proceedings and if the disclosure is strong enough it may well encourage settlement.
What documents are to be included in the list?
Documents are documents whether in writing, audio, computer data or photographs. If the procedure is to be followed is standard disclosure, then those documents the parties will be expected to disclose are:
Documents on which they intend to rely;
- Documents which adversely affect their own case;
- adversely affect another party’s case; support another party’s case and
- any documents they are required to disclose by a relevant Practice Direction.
A duty to disclose is limited to documents which are or have been in the parties control. If you have documents in your possession and they are relevant to the claim then they should be disclosed. There may however be documents which are held by your bank such as copies of commercial agreements, guarantees etc. or documents which are held by an agent. These will be included in the list.
The parties may well limit the disclosure. If they have done so then it will say so in list. That may be a situation where the parties do not search for documentation prior to the date of a contract, or do not go back past a certain date as to do so would undoubtedly be pointless.
The parties then have a right to inspect the documentation or as is usually the case they will be provided with copies. Each party will write specifying what documents in the other parties list they require. If there is a requirement to inspect the original documents then a written Notice is sent to the other party and the other party must permit inspection no more than 7 days after which the Notice has been received.
The list is concluded by a Statement of Truth. The individual litigant must sign that statement it cannot be signed by their solicitor.
There is however a continuing duty to disclose documents throughout the proceedings. If a document is discovered or a document comes into your possession after the disclosure procedure has taken place then there is a continuing duty to disclose that to the other side.
If one of the parties is dissatisfied with the disclosure provided by the other and considers it inadequate then that party can make an Application for an Order for Specific Disclosure from the Court.
Such an Application would require the other party to:
- Disclose the specified document or classes of document;
- Carryout a further search, as specified by the Order and disclose any document located as a result of that search.