Is Everything I tell my Solicitor Private and Confidential?
If you decide to instruct a solicitor in relation to a certain matter you will have to tell your solicitor all the facts about your case. According to Solicitors’ Code of Conduct your solicitor will be bound by a duty of confidentiality and he should therefore not make any unnecessary disclosures about your case. He on the other hand has a duty of disclosure which makes him disclose information if the court so orders. The court has the power to order which information or documents must be disclosed to the other party so that justice is done. Therefore your solicitor may be required to disclose and allow for inspection certain information contained in documents if the court so orders.
Disclosure of documents
In the proceedings the parties may be directed or ordered by the court to disclose certain information e.g. documents about their case to the other party. The fact that one party holds documents which may be important for the other party does not render them available to the other party. These documents are only available for inspection in certain circumstances. Disclosure and inspection of those will help the court clarify the issues, evaluate the case, encourage early settlement of the dispute between the parties and do justice in the end. General rule is that a party must disclose any document in his or her possession which falls within the definition of a standard disclosure ordered by court.
Standard disclosure as defined in Civil Procedure Rules requires a party to disclose certain information, namely the documents on which he relies and which adversely affect his case, another party’s case or support another party’s case. He may be required to disclose documents stated in relevant Practice Direction. The party is required to make a search for those documents and such a search must be reasonable. The reasonableness element requires a party to take into consideration the complexity and nature of the case, the amount of documents, importance of the documents, expense involved in searching for them. There is no need to disclose more than one copy of the document. A document is defined as anything which can contain some information. E.g. tape recordings, laptops, documents, discs, databases, deleted emails etc. A party is only required to disclose documents which are or have been in its control. If during the proceedings the party obtains control of a document which is required to be disclosed it must disclose it. Therefore it is essential that a party does not create any documents which would not be helpful to it in the proceedings.
Inspection of documents
If it is believed that inspection of certain documents would be disproportionate if allowed, such an inspection may not be permitted, it would however have to be explained giving reasons why such an inspection amounts to a disproportionate one. Some documents may not be allowed to be inspected on the basis of legal advice privilege, litigation privilege, and without prejudice communications, common interest privilege and privilege against self-incrimination.
For more information on:
- Legal Advice Privilege
- Litigation Privilege
- Without Prejudice Communications
- Common Interest Privilege
- Privilege against Self-incrimination