Disclosure during Civil Proceedings

Documents which are part of a civil claim

Often when a case concerns a civil claim there will be documents which form part of the claim. It follows that both parties must be made aware of these materials.

Documents which are material to the claim should be distinguished from evidence supporting a claim.

What is meant by a document?

A document is defined by the civil procedure rules as anything in which information of any description is recorded.

Copy in relation to a document means anything onto which information recorded in the document has been copied by whatever means whether directly or indirectly.  This means that a document will not be confined to paper and will be taken to include emails, disks, audio and video cassettes, computer programs and other similar material.

What is meant by disclosure?

Disclosure is the formal process whereby parties to a civil claim will enable each other to inspect or will give each other copies of the documents in their control which are material to the issues in the claim.

When will disclosure take place?

There are two different ways in which disclosure will take place. They are as follows:

  • Standard disclosure
  • Specific disclosure or inspection

Standard Disclosure

Which documents must be disclosed under a standard disclosure?

An individual will have a duty to disclosure certain documents under a standard disclosure. This duty must be adhered to.

Accordingly the following documents must be disclosed under standard disclosure:

  • The documents on which that person relies
  • The documents which
  1. Adversely affect his own case
  2. Adversely affect another party’s case
  3. Support another party’s case
  • The documents he is required to disclose by a relevant practice direction

However, the duty of disclosure is limited to documents which are in that person’s control, i.e. he had them in his physical possession, and he has a right to possession or a right to take copies.

What is the procedure for a standard disclosure?

The procedure for a standard disclosure starts with each party making a list of documents in the relevant practice form to be served on the other party.

What is the purpose of this list?

The list must indicate all documents on which the party will be relying in a convenient and concise manner.

Is there any other purpose to the list?

The list must also indicate the following things:

  • Those documents in respect of which the party claims a right or duty to withhold inspection
  • Those documents which are no longer in the party’s control
  •       What has happened to those documents

So the list also includes documents which cannot be seen by the other party?

The list for a standard disclosure will identify documents which cannot be seen by the other party as there is a duty to withhold inspection or the documents are no longer in the party’s control.

The important thing to note here is that the list is not denying the existence of these document as they will be on the list it is just stating that for whatever reason the other party will not be able to inspect them.

Disclosure statement

The list must also include a disclosure statement.

What is meant by a disclosure statement?

A disclosure statement is a statement made by the party who is disclosing the documents which does the following:

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For more information on:

  • Does the other party then have a right to inspect a document which has been disclosed?
  • Specific Disclosure or Inspection
  • The right to inspect a document
  • To what does this right extend to?