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:

  • Sets out the extent of the search that has been made to locate certain documents which he is required to disclose
  • Certifies that the person understands the duty to disclose documents
  • Certifies that to the best of his knowledge he had carried out that duty

Does the other party then have a right to inspect a document which has been disclosed?

When a list of documents has been provided the other party will have a right to inspect any of the documents except in the following circumstances:

  • Where the document is no longer in control of the person who disclosed it
  • The party disclosing the document has a right or a duty to withhold inspection of it
  • Where a party considers it would be disproportionate to the issues in the case to allow inspection of that document

Specific Disclosure or Inspection

Specific disclosure or inspection deals with the situation whereby the court makes an order for specific documents to be inspected.

An order for specific disclosure is an order that a party must do one or more of the following things:

  • Disclose documents or classes of documents specified in the order
  • Carry out a search to the extent specified in the order
  • Disclose any documents located as a result of that search
  • Make an order for specific inspection of any documents whereby the individual felt that it would be disproportionate to allow inspection of that document

The right to inspect a document

Either through a standard disclosure of a specific disclosure or inspection that person will be given the right to inspect the documents disclosed.

To what does this right extend to?

Where a party to a civil proceeding has a right to inspect a document:

  • That party must give the party who made the disclosure of the document written notice of his duty to inspect it
  • The party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice
  • That party may request a copy of the document, if he also undertakes to pay reasonable copying costs. The party must then supply him with a copy not more than 7 days after the date on which he received the request