Disclosure procedures and requests for further information
The process of disclosure provides for all relevant information to be shared with the other parties to the proceedings prior to the trial. Another means ensuring that all relevant information is disclosed to the other party is the request for further information.
The rules on both procedures require the parties to exchange information they would rely on so that all parties can be prepared for the case they have to meet. Further, embodied in the overriding objective is the need for the matters to be settled justly, quickly and if possible without court interference. Therefore, all disclosure procedures are in the spirit of allowing the parties to attempt and reach an appropriate settlement themselves.
Requesting further information
Requests for further information are made in the effort to explore the causes of action or defences pursued by a party to the proceedings in the first documents exchanged between the parties. They provide an opportunity for the advocates involved in a trial to be very tactical in exploring the information before them. For example they can ask specific questions to expose deficiencies in the other side’s statements of case.
Those requests should generally be made shortly after the relevant statement of case is served. The procedure could also be used to seek clarification of any matter in dispute between the parties even if such has not been mentioned in the relevant statement of case.
The requests and their specifications
Who can make a request?
In principle, a request for further information may be made by any of the parties and court by its own initiative. In practice it is rare for the courts to ask for specific information and whenever they do, it is normally to find out further information for case management including allocation purposes.
The form of the request
Whenever a party is making a request it should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the party posing the questions to prepare its own case and meet the case against them.
The amount and extent of the disclosure could be limited by the courts. Currently, fishing requests, which are merely testing whether certain information could turn out to be helpful to one side, are disallowed.
Further long and oppressive requests are also not allowed. This is because the procedure is established in light of saving costs and maintaining proportionality in accordance with the overriding objective of the civil proceedings. Therefore, an extensive list of questions requiring extensive research and inquiries would defeat the objective of the requests.
In addition, questions going to credibility of witnesses and tending to look into their reliability are not allowed.
Whenever a party is seeking clarification on any point, they should firstly approach the other party directly with a request for more information. In that request they should specify a date by which the response should be served back to them and the period specified should allow the second party a reasonable time to respond.
Following compliance with the request, the second party must serve the response to the first party and must file it at court. In addition, both the questions and the answers must be served on every other party to the proceedings. It is also important to note that the response should be verified by a statement of truth.
Objecting to requests
The second party can object to a request on the ground that compliance will involve a disproportionate expense. This may be because expensive and extensive enquiries would have to be made in order to answer the questions.
If a party objects to answering a request served, they should inform the first party of that objection promptly. Further, this needs to be done within the time stated for the answer to be returned. Additionally, if the party believes they have been given inadequately short time to answer the questions, they should inform the other side by the same process.
If the request for further information has not been responded to, the party asking the questions is entitled to apply to court for an order requiring the other side to reply within a specified time limit. There is no need to inform the second party of the application for such an order if the second party failed to make any response within the time stated, and provided as least 14 days have passed since the request was served on them.
Request for further information may be the proportionate method for dealing with a statement of case which does not provide full information. Alternatively, the more drastic approach of applying to the court to strike out the statement of case in question could be deployed. However, since the measure is seen as a final means, in most cases requests are a more appropriate way to resolve the deficiency.