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Document Disclosure – A Beginner’s Guide 

Introduction 

The UK Civil Procedure Rules (CPR) govern the way in which parties to a civil action serve notices and documents prior to the start of a trial. It is an essential part of the civil litigation process, as it establishes the rules and procedures for the exchange of information. Known as ‘disclosure’, this exchange helps to ensure that both parties have all the relevant facts that they need to present their case in court. 

The Rules 

The CPR sets out the process for exchanging documents, the timeframe for disclosure, and the types of documents that must be disclosed, such as witness statements. It also details the consequences of failing to disclose documents. A “document” in this context can be anything that is recorded, including a photograph, a video or removable media. 

The duty of disclosure extends to all relevant documents that are in a party’s possession, even those that are not necessarily going to relied upon in court. It includes documents that support the other party’s case and adversely affect the party’s own case. It doesn’t extend to communications that are legally privileged, such as those between a party and their solicitor.  

If a party fails to disclose documents as required, the court can impose sanctions, such as making an award of costs in favour of the other party, or striking out a party’s claim or defence (per Rybak v Langbar International Ltd (2010)). 

Following disclosure, the other party can inspect the disclosed documents, subject to certain exemptions – for example, where it would be “disproportionate” to do so. Such disproportionality is determined by reference to the value of the claim, the value of the documents and the cost of allowing inspection (CPR 31). 

Case Law 

Certain cases have helped to establish the parameters of the disclosure rules and the manner in which parties may obtain the information and documentation that they need to prepare for a trial.

  • The House of Lords decision in R (on the application of Collins) v Secretary of State for Work and Pensions (2009) was significant in determining that the CPR should be interpreted in a “generous” manner, and that the Court should “seek to enable the parties to the litigation to proceed on the basis of fair and reasonable disclosure”.  
  • In examining the long-established principle that a reasonable search should be made for documentation, and the case of Nichia Corporation v Argos Ltd (2008) affirmed that reasonableness should be tailor-made to the nature and complexity of the matter at hand. 
  • The case of Wagstaff v Colls (2003) affirmed that solicitors are in charge of deciding what documents are or are not to be disclosed, and made clear that if a solicitor “cannot persuade his client to comply with what is right in the circumstances, the solicitor must withdraw from the case.” 

Conclusion 

The document disclosure and inspection processes are an integral part of civil procedure and it is important to understand the parameters of the rules. The scope of disclosure that is required will vary from case-to-case, and the court will always retain discretion as to whether to order the disclosure of specific documents. Here at QCL, we have extensive experience in navigating the civil procedure rules, and we are at hand to assist our clients when they engage in litigation, whether as claimants or defendants.

*This article is not legal advice but provides a general overview. The specific details of your case will determine the best course of action.